O'Rorke v. Carpenter

125 A.D.2d 223, 509 N.Y.S.2d 28, 1986 N.Y. App. Div. LEXIS 62494

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 11, 1986
• Status: Published

Opinion

— Order of the Supreme Court, New York County (Andrew R. Tyler, J.), entered January 23, 1986, which, inter alia, denied the part of defendant’s motion for an order striking plaintiffs’ demand for a jury trial, is unanimously modified, on the law, that part of the defendant’s motion granted, and otherwise affirmed, without costs or disbursements.

Plaintiffs commenced this action alleging libel and slander by defendant and in their complaint sought preliminary and permanent injunctive relief besides compensatory and punitive damages. Thereafter, in response to defendant’s motion to strike the case from the Jury Calendar, the plaintiffs withdrew their prayer for injunctive relief.

In holding that the plaintiffs were entitled to a jury trial because of their withdrawal of the equitable claim, the court at nisi prius erred.

It has long been settled that the joinder of claims for legal and equitable relief results in a waiver of the right to a jury trial. (Panarella v Penthouse Intl., 64 AD2d 545; CPLR 4102 [c].) Plaintiffs cannot revive this right by a subsequent "maneuver” to sever the equitable claim. (Kaplan v Long Is. Univ., 116 AD2d 508, 509; Panarella v Penthouse Intl., supra.) Concur — Kupferman, J. P., Ross, Carro, Asch and Rosenberger, JJ.