Montalvo v. Netta Realty Corp.

51 A.D.2d 1005, 381 N.Y.S.2d 111, 1976 N.Y. App. Div. LEXIS 11767

Opinion

In an action (1) to recover damages for breach of contract and (2) for rescission of a lease, defendants appeal from an order of the Supreme Court, Queens County, dated December 10, 1975, which denied their motion to strike plaintiffs’ demand for a jury trial. Order reversed, with $50 costs and disbursements, and motion granted. Plaintiffs’ second cause of action alleges fraudulent inducement of the contract which they seek to rescind and also seeks money damages. This is an equitable claim notwithstanding the demand for money damages (see CPLR 3002, subd [e]). Having joined legal and equitable claims, plaintiffs have waived their right to a jury trial (see Petra Cablevision Corp. v Teleprompter Corp., 49 AD2d 888; Heller v Hacken, 40 AD2d 1012). Hopkins, Acting P. J., Cohalan, Damiani, Christ and Titone, JJ., concur.