Opinion
February 3, 1994
Appeal from the Supreme Court, New York County (Helen Freedman, J.).
After the plaintiff corporation in receivership was declared once and for all the proper party to pursue this shareholder derivative action, and while the case was pending in the Trial Assignment Part, the defendants challenged plaintiff's right to a jury trial on the ground that the complaint included demands for equitable relief. Because the plaintiff alleges the existence of a conspiracy among the defendants, but alleges that the conspiracy acted in two fully separable transactions (see, Regan v. Martindale, 72 A.D.2d 676, 677), the primary character of the demand for relief concerning the so-called Armco transaction is legal in nature, and the demand for an accounting is merely incidental (see, Cadwalader Wickersham Taft v. Spinale, 177 A.D.2d 315).
We have considered the defendants' remaining arguments, and find them to be without merit.
Concur — Murphy, P.J., Rosenberger, Wallach, Asch and Williams, JJ.