Mendelson v. Adler

138 A.D.2d 465, 526 N.Y.S.2d 24, 1988 N.Y. App. Div. LEXIS 2875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1988
• Status: Published

Opinion

In an action, inter alia, for specific performance of an option to purchase real property and to recover damages, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Orgera, J.), dated November 24, 1986, which denied their motion to strike the defendants’ demand for a jury trial.

Ordered that the order is affirmed, with costs.

The plaintiffs entered into leases with the decedent Murray Adler to occupy office space in his building. Each lease contained a jury waiver provision. The parties also entered into separate and distinct option contracts to purchase the premises. After the decedent’s death, the defendant Marie Adler took title, rejected the plaintiffs’ offer to purchase under the option contracts and sold the property to the defendant Triport, Inc.

The plaintiffs sued on their option contracts and the defendants filed a demand for a jury trial. The plaintiffs urged that the jury waiver provision of the leases prevented the defendants from having a jury trial.

Since the plaintiffs sued upon the option contracts, which did not contain waivers of a jury trial, and which did not refer to the leases, the defendants had the right to demand a jury trial. Mollen, P. J., Lawrence, Eiber, Sullivan and Balletta, JJ., concur.