Mirasola v. Gilman

104 A.D.2d 932, 480 N.Y.S.2d 548, 1984 N.Y. App. Div. LEXIS 20376

Opinion

— In an action for money damages and equitable relief, plaintiffs appeal from an order of the Supreme Court, Suffolk County (Gowan, J.), dated February 29, 1984, which denied their motion, made pursuant to CPLR 4101 and 4102, for an order directing the calendar clerk to accept their demand for a jury trial.

Order affirmed, without costs or disbursements.

By deliberately joining legal and equitable causes of action arising out of the same transaction, plaintiffs waived their right to a trial by jury (see Tanenbaum v Anchor Sav. Bank, 95 AD2d 827; Vincent v Cooperman, 283 App Div 812). The subsequent removal of the equitable claims from the case through a partial settlement did not revive that right (cf. Panarella v Penthouse Int., 64 AD2d 545; Heller v Hacken, 40 AD2d 1012). Mangano, J. P., Gibbons, Bracken and Niehoff, JJ., concur.