Burns v. Burns

Appellate Division of the Supreme Court of New York

Burns v. Burns

2017 NY Slip Op 1841, 148 A.D.3d 863, 48 N.Y.S.3d 610

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 2017

Docket2016-11754

StatusPublished

This text of 2017 NY Slip Op 1841 (Burns v. Burns) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Burns v. Burns, 2017 NY Slip Op 1841, 148 A.D.3d 863, 48 N.Y.S.3d 610 (N.Y. Ct. App. 2017).

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Opinion

Appeal from an order of the Supreme Court, Kings County (Kenneth R Sherman, J.), dated October 18, 2016. The order denied the motion of the defendant Stephanie Burns to strike the plaintiff’s jury demand.

Ordered that the order is affirmed, with costs.

“A jury trial is guaranteed in an action ‘for determination of a claim to real property under [RPAPL article 15]’ ” (Paciello v Graffeo, 8 AD3d 543, 543 [2004], quoting CPLR 4101 [2]). Although the plaintiff did not characterize or refer to his causes of action to recover possession of real property as claims pursuant to RPAPL article 15, he was nevertheless entitled to a jury trial on those causes of action (see Paciello v Graffeo, 8 AD3d 543 [2004]; see also Howard v Murray, 38 NY2d 695, 699-700 [1976]). Moreover, regardless of whether the plaintiff’s causes of action to recover the subject properties are equitable in nature, he is statutorily entitled to a jury trial on those causes of action (see City of Syracuse v Hogan, 234 NY 457, 462 [1923]) and, thus, he did not waive his right to a jury trial by joining legal and equitable claims (see Paciello v Graffeo, 8 AD3d at 543). Accordingly, the Supreme Court properly denied the defendant Stephanie Burns’ motion to strike the plaintiff’s jury demand.

Leventhal, J.P., Cohen, Hinds-Radix and Connolly, JJ., concur.

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Appeal from an order of the Supreme Court, Kings County (Kenneth R Sherman, J.), dated October 18, 2016. The order denied the motion of the defendant Stephanie Burns to strike the plaintiff’s jury demand.

Ordered that the order is affirmed, with costs.

“A jury trial is guaranteed in an action ‘for determination of a claim to real property under [RPAPL article 15]’ ” (Paciello v Graffeo, 8 AD3d 543, 543 [2004], quoting CPLR 4101 [2]). Although the plaintiff did not characterize or refer to his causes of action to recover possession of real property as claims pursuant to RPAPL article 15, he was nevertheless entitled to a jury trial on those causes of action (see Paciello v Graffeo, 8 AD3d 543 [2004]; see also Howard v Murray, 38 NY2d 695, 699-700 [1976]). Moreover, regardless of whether the plaintiff’s causes of action to recover the subject properties are equitable in nature, he is statutorily entitled to a jury trial on those causes of action (see City of Syracuse v Hogan, 234 NY 457, 462 [1923]) and, thus, he did not waive his right to a jury trial by joining legal and equitable claims (see Paciello v Graffeo, 8 AD3d at 543). Accordingly, the Supreme Court properly denied the defendant Stephanie Burns’ motion to strike the plaintiff’s jury demand.

Leventhal, J.P., Cohen, Hinds-Radix and Connolly, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 1841, 148 A.D.3d 863, 48 N.Y.S.3d 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burns-v-burns-nyappdiv-2017.

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