Regan v. Martindale

72 A.D.2d 676, 421 N.Y.S.2d 209, 1979 N.Y. App. Div. LEXIS 13855

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1979
• Status: Published

Opinions

Order, Supreme Court, New York County, entered June 7, 1979, denying plaintiffs motion for a jury trial, reversed, on the law, with costs and disbursements, and the motion granted. The complaint sets forth six causes of action, the first of which seeks equitable relief. In the second cause of action plaintiff seeks damages for the wrongs pleaded in the first cause. Causes of action three through six are based on a breach of employment contract and the wrongful inducement thereof against diverse defendants and seek damages. It is alleged, without contradiction, that plaintiffs counsel was advised by the calendar clerk that a note of issue containing a jury demand would not be accepted because both legal and equitable causes of action were pleaded. When it was pointed out that plaintiff was entitled to a jury trial on the third through sixth causes of action, the calendar clerk recommended that counsel place upon the note of issue the statement "Plaintiff reserves the right to apply for a jury in the Trial Part without prejudice to defendant’s reservation of their rights to oppose such application”. A note of issue containing such reservation was accepted for filing. A second note of issue bearing the same reservation was filed four months later inasmuch as plaintiffs application for a preference was granted after the first filing on condition that plaintiff file a note of issue and statement of readiness certifying the case as ready for trial. Twelve days after the case was first called in Trial Term, plaintiff moved for a jury trial on causes of action three through six. Finding that plaintiff had waived his right to a jury trial by failing to comply with the requirements of CPLR 4102 (subd [d]) and 22 NYCRR 660.4 (c) of the Rules of the Supreme Court, New York and Bronx Counties, Trial Term denied the motion. We reverse and grant the motion under the discretionary power provided under CPLR 4102 (subd [e]). Although it was not the basis of Trial Term’s determination, we reject defendants’ argument that plaintiff is, in the first instance, not entitled to a jury trial on the latter four causes of action because they arise out of the same transaction as the first two, since the alleged fraudulent cancellation of the agreement and instruments executed in 1960 for which plaintiff seeks equitable relief and damages occurred on October 17, 1975, while the alleged breach of the employment agreement, for which plaintiff claims damages, occurred on November 6, 1975. Thus, there is no waiver by joinder. (See CPLR 4102, subd [c].) Although plaintifPs reservation of right to a jury trial would not normally be countenanced, the peculiar circumstances here warrant the relief sought since no undue prejudice to defendants’ rights is asserted. (CPLR 4102, subd [e].) Concur—Sullivan, Lane, Lupiano and Lynch, JJ.