Lief v. Hill

100 A.D.3d 836, 953 N.Y.S.2d 902

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 2012
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered August 30, 2011, as granted that branch of the motion of the defendants Emita Hill and Frederick Abbabio which was to strike the plaintiff’s demand for a trial by jury.

Ordered that the order is affirmed insofar as appealed from, with costs.

“ ‘[T]he deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial’ ” (Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481, 482 [2009], quoting Hebranko v Bioline Labs., 149 AD2d 567, 567-568 [1989]; cf. CPLR 4102 [c])- Here, the Supreme Court properly determined that the plaintiff waived her right to a trial by jury by joining legal and equitable causes of action arising from the same transaction and seeking both legal and equitable relief (see Whipple v Trail Props., 261 AD2d 470 [1999]; cf. Hebranko v Bioline Labs., 149 AD2d 567, 568 [1989]). Accordingly, the court properly granted that branch of the motion of the defendants Emita Hill and Frederick Abbabio which was to strike the plaintiff’s demand for a trial by jury. Mastro, J.E, Skelos, Florio and Dickerson, JJ., concur.