Giammalvo v. 2170-2178 Broadway LLC

Appellate Division of the Supreme Court of New York

Giammalvo v. 2170-2178 Broadway LLC

293 A.D.2d 390, 740 N.Y.S.2d 617, 2002 N.Y. App. Div. LEXIS 4074

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

DecidedApril 25, 2002

StatusPublished

Cited by3 cases

This text of 293 A.D.2d 390 (Giammalvo v. 2170-2178 Broadway LLC) 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

Giammalvo v. 2170-2178 Broadway LLC, 293 A.D.2d 390, 740 N.Y.S.2d 617, 2002 N.Y. App. Div. LEXIS 4074 (N.Y. Ct. App. 2002).

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Opinion

—Order, Supreme Court, New York County (Louis York, J.), entered on or about October 4, 2001, which, in these consolidated actions, inter alia, denied defendants’ motion to strike plaintiffs’ jury demand insofar as to direct that plaintiffs’ fourth, sixth and seventh causes of action be tried by a jury, unanimously modified, on the law, to grant defendants’ motion to strike plaintiffs’ jury demand in its entirety, and otherwise affirmed, without costs.

Most of the relief sought in plaintiffs’ original complaint is equitable in nature. This being the case, plaintiffs waived their right to a jury trial (see, e.g., Sherry Assoc. v Sherry-Netherland, Inc., 273 AD2d 14; Phoenix Garden Rest, v Chu, 234 AD2d 233). While plaintiffs’ fourth cause of action arguably arises from a transaction distinct from those underlying plaintiffs’ remaining causes, it is not thereby excepted from plaintiffs’ waiver, since it, like the balance of the complaint, seeks predominantly equitable relief. Even though many of plaintiffs’ requests for equitable relief may have become moot, the right to a jury trial is not thereby revived (see, Zimmer-Masiello, Inc. v Zimmer, Inc., 164 AD2d 845). We note, in addition, that the legal relief sought in plaintiffs’ sixth and seventh causes of action appears to have become moot by virtue of a settlement between the parties. Concur—Nardelli, J.P., Buckley, Ellerin, Lerner and Rubin, JJ.

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—Order, Supreme Court, New York County (Louis York, J.), entered on or about October 4, 2001, which, in these consolidated actions, inter alia, denied defendants’ motion to strike plaintiffs’ jury demand insofar as to direct that plaintiffs’ fourth, sixth and seventh causes of action be tried by a jury, unanimously modified, on the law, to grant defendants’ motion to strike plaintiffs’ jury demand in its entirety, and otherwise affirmed, without costs.

Most of the relief sought in plaintiffs’ original complaint is equitable in nature. This being the case, plaintiffs waived their right to a jury trial (see, e.g., Sherry Assoc. v Sherry-Netherland, Inc., 273 AD2d 14; Phoenix Garden Rest, v Chu, 234 AD2d 233). While plaintiffs’ fourth cause of action arguably arises from a transaction distinct from those underlying plaintiffs’ remaining causes, it is not thereby excepted from plaintiffs’ waiver, since it, like the balance of the complaint, seeks predominantly equitable relief. Even though many of plaintiffs’ requests for equitable relief may have become moot, the right to a jury trial is not thereby revived (see, Zimmer-Masiello, Inc. v Zimmer, Inc., 164 AD2d 845). We note, in addition, that the legal relief sought in plaintiffs’ sixth and seventh causes of action appears to have become moot by virtue of a settlement between the parties. Concur—Nardelli, J.P., Buckley, Ellerin, Lerner and Rubin, JJ.

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Bluebook (online)

293 A.D.2d 390, 740 N.Y.S.2d 617, 2002 N.Y. App. Div. LEXIS 4074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giammalvo-v-2170-2178-broadway-llc-nyappdiv-2002.

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