Downtown Art Co. v. Zimmerman

227 A.D.2d 226, 642 N.Y.S.2d 259, 1996 N.Y. App. Div. LEXIS 5155

Opinion

Order, Supreme Court, New York County (Herman Cahn, J.), entered on or about February 5, 1996, which granted plaintiff’s motion to strike defendant’s jury demand, unanimously affirmed, with costs.

Aside from its contract claims, the main relief plaintiff seeks is an injunction against defendant’s continuing her use of the Soho Booking name and logo. Defendant initially asserted a counterclaim for similar relief as against plaintiff, but withdrew it without prejudice. The IAS Court correctly held that "the primary character of the case” is equitable (Cadwalader Wickersham & Taft v Spinale, 177 AD2d 315, 316), as neither party would obtain full and complete relief by a judgment for a sum of money (Murphy v American Home Prods. Corp., 136 AD2d 229, 232). Defendant’s withdrawal without prejudice of her equitable claim neither changed the character of the action nor revived any right she may have had for trial by jury (Zimmer-Masiello, Inc. v Zimmer, Inc., 164 AD2d 845, 846-847). Concur — Wallach, J. P., Ross, Williams and Mazzarelli, JJ.