Chim Chul Yi v. Marcy Realty Co.

291 A.D.2d 368, 736 N.Y.S.2d 883, 2002 N.Y. App. Div. LEXIS 1294

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2002
• Status: Published

Opinion

—In an action, inter alia, to recover damages for fraud, the defendant appeals from so much of an order of the Supreme Court, Queens County (Glover, J.), dated January 2, 2001, as denied those branches of its motion which were for summary judgment dismissing the second and third causes of action, or in the alternative, to strike the plaintiffs’ demand for a jury trial, and granted that branch of the plaintiffs’ cross motion which was to dismiss its first counterclaim.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant’s motion which was to strike the plaintiffs’ demand for a jury trial and substituting a provision therefor granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly denied that branch of the defendant’s motion which was for summary judgment dismissing the second and third causes of action since triable issues of fact exist. However, the Supreme Court improperly denied that branch of the defendant’s motion which was to strike the plaintiffs’ demand for a jury trial. By joining their equitable claims for specific performance and injunctive relief with legal claims for damages, the plaintiffs waived their right to a jury trial (see, Hausner v Mendelow, 198 AD2d 210; Gabbay v Ratchik, 60 AD2d 593).

The defendant’s remaining contentions are without merit. Krausman, J.P., Luciano, Adams and Townes, JJ., concur.