Ingenuit v. Harriff

56 A.D.2d 428, 867 N.Y.S.2d 151

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 2008
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of an employment contract, the defendant appeals from an order of the Supreme Court, Kings County (Ambrosio, J.), dated January 7, 2008, which granted the plaintiffs’ motion to strike his demand for a jury trial.

Ordered that the order is affirmed, with costs.

The main relief sought by the plaintiffs in this action is an injunction against the defendant’s continued solicitation of the plaintiffs’ clients and use of the plaintiffs’ proprietary information to unfairly compete against them. Since the primary character of the case is equitable and the plaintiffs’ damages claims Eire merely incidental thereto, there is no right to a jury trial (see CPLR 4101; Downtown Art Co. v Zimmerman, 227 AD2d 226 [1996]; Agrawal v Razgaitis, 209 AD2d 566 [1994]; Hamburger v Levitin, 140 AD2d 583, 584 [1988]). Moreover, the defendant’s counterclaim, despite containing a demand for damages, is also equitable in nature since it relates directly to the injunctive relief sought by the plaintiffs in the complaint (see Magill v Dutchess Bank & Trust Co., 150 AD2d 531, 531-532 [1989]). Accordingly, the Supreme Court properly granted the plaintiffs’ motion to strike the defendant’s demand for a jury trial.

The defendant’s remaining contentions either are without merit or have been rendered academic by our determination. Spolzino, J.P, Ritter, Santucci and Garni, JJ., concur.