Steinberg & Early Hubelbank, PLLC v Bock

[*1] Steinberg & Early Hubelbank, PLLC v Bock 2009 NY Slip Op 51903(U) [24 Misc 3d 1247(A)] Decided on August 19, 2009 Supreme Court, Nassau County Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 19, 2009
Supreme Court, Nassau County

Steinberg & Early Hubelbank, PLLC, Plaintiff,

against

Lori Bock, Defendant.



12287/06



Steinberg & Early Hubelbank, PLLC

Pro se

Jeffrey Levitt, Esq.

Attorney for Defendant

Thomas Feinman, J.

The plaintiff moves for an order denying defendant's request for a trial by jury. The defendant cross-moves for an order granting sanctions against plaintiff, or alternatively, granting renewal of defendant's prior cross-motion dated May 30, 2008, submitted before the Honorable Justice Parga, whereby a decision was rendered by the Honorable Justice Parga on August 21, 2008. The plaintiff submits an affirmation in opposition to defendant's cross-motion and in reply to defendant's opposition to the plaintiff's motion.

The plaintiff initiated this action for non-payment of legal fees, asserting a cause of action for an account stated and unjust enrichment. Plaintiff seeks payment for legal fees allegedly earned during plaintiff's representation of the defendant in her divorce action. The defendant asserts, in her counterclaim, a claim sounding in breach of fiduciary duty and legal malpractice. The defendant asserts various affirmative defenses including estoppel, and that the plaintiff delayed the judgment of divorce which delayed the recovery of some equitable distribution.

CPLR §4101 provides, in pertinent part, in the following actions, all issues of fact shall be tried by a jury unless a jury trial is waived, except that equitable defenses and equitable counterclaims shall be tried by the court: "1. an action in which a party demands and sets forth [*2]facts which would permit a judgment for a sum of money only."

CPLR §4102(a) provides, in pertinent part, that any party served with a note of issue not containing a demand for a jury may demand a trial by jury by serving a demand within fifteen (15) days after service of the note of issue. CPLR §4102(e) provides that "the court may relieve a party from the effect of failing to comply with this section if no undue prejudice to the rights of another party would result".

Plaintiff argues essentially that the defendant's request for a jury trial should be denied pursuant to CPLR §4102(a) as the defendant waived her right to a trial by jury in failing to request a trial by jury within fifteen (15) days after receipt of same. Plaintiff annexes a copy of plaintiff's prior note of issue apparently purchased on May 28, 2008 and served on the defendant on May 29, 2008. Thereafter, the defendant cross-moved to vacate such note of issue. However, by way of Order of the Honorable Justice Parga dated August 21, 2008, the defendant's cross-motion to vacate plaintiff's note of issue was denied as the "Court records fail to indicate that a Note of Issue was filed". The plaintiff acknowledges said decision and provides, by way of footnote, however a Note of Issue was filed, despite the aforesaid decision. In any event, the instant matter was certified on May 6, 2009 and plaintiff served the defendant with a copy of the Note of Issue on June 15, 2009, along with a copy of the Certification Order dated May 6, 2009 whereby plaintiff was directed to file a note of issue within ninety (90) days. The defendant served a Demand for a Jury on June 23, 2009.

The plaintiff submits the defendant waived his right to serve a Demand for Jury as his Demand was not served within fifteen (15) days of service of plaintiff's "first" Note of Issue served on May 29, 2008, pursuant to CPLR §4102(a). However, as already provided, the defendant cross-moved to vacate such note of issue, and by way of order it was determined that there was no court record that such note of issue was filed. Certainly the defendant is relieved of any effect of failing to serve a Demand for a Jury under these circumstances, and plaintiff's request for an order declaring defendant waived his right to Demand a Jury with respect to such note of issue is not warranted. (CPLR §4102(e)). In any event, the defendant had not abandoned its rights to serve a Demand for a Jury pursuant to CPLR §4102(a) with respect to the Note of Issue served on the defendant on June 15, 2009, of which the Court has a record of, as the defendant clearly served its demand within fifteen (15) days of such note of issue being served on the defendant.

The plaintiff also submits, essentially, that the defendant waived her right to serve a Demand for Jury pursuant to CPLR §4101, as plaintiff has asserted a cause of action for unjust enrichment, (equitable), along with plaintiff's claim for legal fees, (law), and the defendant has asserted the affirmative defense of estoppel, (equitable), and a counterclaim sounding in breach of fiduciary duty and legal malpractice, (equitable and legal).

"A plaintiff cannot, by artful pleading, deprive a defendant of his constitutionally [*3]guaranteed right to a trial by jury by limiting his demand for relief to a declaration of rights instead of seeking whatever coercive relief would be appropriate in enforcing the rights thus established." (Gordon v. Continental Casualty Company, 91 AD2d 987). When the facts pleaded permit a judgment for a sum of money, the defendant's jury demand must be honored under CPLR §4101 despite plaintiff's framing his demand for relief in equity. (Id.) Where one cause of action seeks equity, and another law, the plaintiff may have waived its right to a jury trial, but the plaintiff cannot deprive defendant of its rights to a jury trial of all issues so triable. (L.C.J. Realty Corp. v. Back, 37 AD2d 840). An executor was held to be entitled to a jury trial on a legal malpractice claim even where the attorney fee proceeding was equitable. (Sackler v. Breed, Abbott & Morgan, 222 AD2d 9). In Behrins & Behrins, P.C. v. Chan, 15 AD3d 515, following a divorce action, the law firm that represented the wife brought an action against her seeking payment of outstanding attorney fees. The wife also brought a legal malpractice action against the firm and made a jury demand on both actions. The Second Department reversed the lower court's decision that held that the wife was not entitled to a jury trial on such claims. The Court found that plaintiff's action involved actions at law seeking money judgments, and thus the wife was entitled to a jury trial. (Id.) The Court also stated that although the jury may have to incidentally have to examine a prior equitable distribution award, it is irrelevant as the jury is not being called upon to change the prior distribution of the assets between the appellant and her former husband. (Id.)

Here, the defendant is entitled to a jury trial as the defendant has asserted a counterclaim sounding in malpractice, and the plaintiff's action seeks a money judgment from the defendant in order to recoup its legal fees in connection with the plaintiff's representation of the defendant in her divorce action.

In light of the foregoing, the plaintiff's motion is denied.

The defendant's cross-motion for sanctions is denied as sanctions are not warranted, and defendant's cross-motion to renew its prior 2008 motion is denied.

The defendant has not demonstrated how the prior Court "overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision." (Loland v. City of New York, 212 AD2d 674). The defendant has not demonstrated entitlementto renewal as defendant has not presented "new facts" that did not exist when the original motion was made which were unknown to the defendant. (Angiolillo v. Town of Greenburgh, 290 AD2d 1; Gilson v. National Union Fire Ins. Co., 246 AD2d 897).

ENTER:

________________________________

J.S.C. [*4]

Dated: August 19, 2009