Poley v. Rochester Community Savings Bank

184 A.D.2d 1027

Opinion

Order unanimously affirmed with costs. Memorandum: Supreme Court properly determined that plaintiffs did not waive their right to a jury trial by requesting injunctive relief in the original or amended complaint. The original complaint contained seven causes of action for money damages arising out of an alleged wrongful termination of an employment contract. Although plaintiffs requested temporary injunctive relief pending resolution of the lawsuit, that request was incidental to a demand for money damages, and the essence of the dispute was the wrongful termination. Under the circumstances, the assertion of a claim for temporary relief did not constitute a waiver of the right to a jury trial (see, Hebranko v Bioline Labs., 149 AD2d 567; Cowper Co. v Buffalo Hotel Dev. Venture, 99 AD2d 19; see also, Dairy Queen v Wood, 369 US 469, 477-478).

We reach the same conclusion regarding the amended complaint. Although the fifth cause of action of the amended complaint requested both money damages and the equitable remedies of an accounting and the imposition of a constructive trust, the essence of that cause of action is that plaintiffs were fraudulently induced into making the contract, an issue that is triable by jury. Moreover, the fraudulent inducement constituted a separate transaction from the wrongful termination alleged in the remaining causes of action (see, Regan v Martindale, 72 AD2d 676; Fleischer v Institute for Research in Hypnosis, 57 AD2d 535). (Appeal from Order of Supreme Court, Monroe County, Curran, J. — Strike Jury Trial.) Present —Callahan, J. P., Boomer, Balio, Lawton and Doerr, JJ.