Chauvin v. Keniry

216 A.D.2d 753, 628 N.Y.S.2d 610, 1995 N.Y. App. Div. LEXIS 6528

Opinion

Crew III, J.

Appeal from a judgment of the Supreme Court (Monserrate, J.), entered December 16, 1993 in Saratoga County, upon a decision of the court in favor of plaintiff.

On this appeal, plaintiff contends that Supreme Court erred in striking his demand for a jury trial. We agree. In determining whether a plaintiff is entitled to a jury trial, the relevant inquiry is whether the overall nature and character of the action is equitable or legal in nature (see, e.g., Cadwalader Wickersham & Taft v Spinale, 177 AD2d 315, 316; Murphy v American Home Prods. Corp., 136 AD2d 229, 232). Our review of the record persuades us that the crux of plaintiff’s claim sounds in conversion and breach of contract and that his request for an accounting was simply incidental to the money damages sought (see, Abrams v Rogers, 195 AD2d 349, 349-350; Azoulay v Cassin, 103 AD2d 836). Accordingly, plaintiff is entitled to a jury trial. In light of this conclusion, we need not address the remaining issues raised by plaintiff on appeal.

Mikoll, J. P., Yesawich Jr., Peters and Spain, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Supreme Court for a jury trial.