Centrifugal Associates, Inc. v. Highland Metal Industries, Inc.

224 A.D.2d 254, 637 N.Y.S.2d 700, 1996 N.Y. App. Div. LEXIS 1007

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1996
• Status: Published

Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered September 13, 1994, which, inter alia, directed entry of judgment in favor of defendant in the principal sum of $169,939, unanimously affirmed, with costs.

On this appeal from the IAS Court’s order, plaintiff cannot challenge the court’s ruling, during trial, to discharge the jury and convert the hearing into a nonjury trial (see, Royal v Brooklyn Union Gas Co., 122 AD2d 132, 133). CPLR 5501 (a) (3) does not apply absent entry of judgment. In any event, were this Court to reach the merits of the claim, we would find that plaintiff waived any right to a jury trial by failing to make objection to the ruling and by participating, without protest, in the nonjury trial (see, Vias v Rohan, 119 AD2d 672; Petty v Field, 97 AD2d 538, 539, appeal dismissed 61 NY2d 902). We would also find plaintiff was not entitled to a jury trial since its action was primarily equitable in nature (see, Kaplan v Long Is. Univ., 116 AD2d 508, 509). Concur — Milonas, J. P., Ellerin, Wallach, Kupferman and Williams, JJ.