Ambac Assurance Corp. v. DLJ Mortgage Capital, Inc.

102 A.D.3d 487, 956 N.Y.S.2d 891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 2013
• Status: Published

Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 13, 2011, which, to the extent appealed from, upon reargument, struck plaintiffs’ demand for a jury trial, unanimously reversed, on the law, without costs, and the jury demand reinstated.

The complaint alleges repeatedly that the insurance agreement was obtained through various types of fraud, making it clear that fraudulent inducement is plaintiffs primary claim. Thus, the provision of the agreement that waives the right to trial by jury does not apply (see MBIA Ins. Corp. v Credit Suisse Sec. [USA], LLC, 102 AD3d 488 [1st Dept 2013] [decided simultaneously herewith]; Wells Fargo Bank, N.A. v Star gate Films, Inc., 18 AD3d 264, 265 [1st Dept 2005]). It is of no consequence that the complaint does not contain the word “rescission” or expressly state that it challenges the validity of the insurance agreement (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Concur—Saxe, J.P., Renwick, Freedman, Román and Gische, JJ. [Prior Case History: 33 Misc 3d 1208(A), 2011 NY Slip Op 51815(U).]