Fransac Corporation v. Avnet, Inc.

2 Citing cases

  1. Phoenix Garden Restaurant, Inc. v. Chu

    234 A.D.2d 233 (N.Y. App. Div. 1996)   Cited 33 times

    ( See, 81 Franklin Co. v Ginaccini, 149 Misc 2d 124 [Civ Ct, NY County].) The Second Department has adopted the position that the statutory policy against jury waivers does not apply to contractually based injury, such as arising from breach of a lease ( Linden-wood Realty Co. v Feldman, 40 AD2d 855, revg on dissenting opn of Gulotta, J., at App Term 72 Misc 2d 68, 69-70). The Fourth Department agrees that a claim for damages arising out of breach of a lease cannot repudiate a valid jury waiver contained therein ( Fay's Drug Co. v P C Prop. Coop., 51 AD2d 887). Cases in this Department, while recognizing the distinction, have nonetheless taken the position that the statutory proscription draws no line between tortiously and contractually based property damage claims, any and all such waivers being in violation of public policy ( see, Swinger Realty Corp. vKizner Imports, 70 Misc 2d 742 [App Term, 1st Dept]), although the contrary view has had its adherents ( see, minority mems in Fransac Corp. v Avnet, Inc., 49 AD2d 523). However, we need not reach the question of legislative interpretation here. By mingling claims for money damages with substantia l and independent claims sounding in equity, plaintiffs have effectively waived their right to trial by jury ( Zimmer-Masiello, Inc. v Zimmer, Inc., 164 AD2d 845). Inclusion of a demand for money damages in the complaint does not, in and of itself, guarantee entitlement to a jury trial ( Kaplan v Long Is. Univ., 116 AD2d 508). Rather, it must be determined whether the main thrust of the action is for legal damages or for equitable relief ( Trepuk v Frank, 104 AD2d 780).

  2. 81 Franklin Co. v. Ginaccini

    149 Misc. 2d 124 (N.Y. Misc. 1990)   Cited 15 times

    In concurrence, Judge Lupiano agreed with the Second Department's view of the purposes of section 259-c, but, based upon the literal language of the statute and deference to legislative prerogative, felt constrained to concur (supra, at 743-744). In Fransac Corp. v. Avnet, Inc. ( 49 A.D.2d 523 [1st Dept. 1975]), a majority of the Appellate Division, First Department, declined to reach the jury waiver issue and the "impact of Lindenwood". In a separate concurrence, Justice Capozzoli stated that if the jury waiver issue were properly before him, he would follow the view adopted by the Second Department in Lindenwood (supra, at 524).