Opinion
December 11, 1997
Appeal from the Supreme Court, New York County (David Saxe, J.)
Plaintiffs waived the right to a jury trial by joining equitable and legal claims arising out of the same wrong or transaction ( Roberts v. 156 E. 79th St. Corp., 205 A.D.2d 315; Daley v. Related Cos., 213 A.D.2d 205; Paralegal Inst. v. Big Sol Mfg. Co., 190 A.D.2d 595). The equitable relief sought is not merely incidental to plaintiffs' legal claims. Nor will money damages alone afford plaintiffs a complete remedy ( Cadwalader Wickersham Taft v. Spinale, 177 A.D.2d 315).
Plaintiffs have also failed to demonstrate a viable cause of action for trespass, based on excessive heat, in the circumstances at bar. Trespass involves an interference with a person's right to possession of real property either by an unlawful act or a lawful act performed in an unlawful manner ( New York State Natl. Org. for Women v. Terry, 886 F.2d 1339, 1361, cert denied 495 U.S. 947; see also, Ivancic v. Olmstead, 66 N.Y.2d 349, cert denied 476 U.S. 1117). There has been no showing in this case of either an unlawful act or a lawful act performed in an unauthorized manner. To the contrary, defendant is authorized and obligated under the lease to provide heat to plaintiffs' apartment.
Defendant's remaining contentions are without merit.
Concur — Sullivan, J. P., Rosenberger, Wallach, Nardelli and Colabella, JJ.