Haber v Cohen

[*1] Haber v Cohen 2009 NY Slip Op 52139(U) [25 Misc 3d 1216(A)] Decided on October 21, 2009 Supreme Court, Kings County Kurtz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 21, 2009
Supreme Court, Kings County

Ray Haber and Sharon Haber, Plaintiffs,

against

Betty Cohen, Martin Cohen and Adam Cohen, Defendants.



Ray Haber and Sharon Haber, Third-Party Plaintiffs,

against

MRC II, H.S. Jessup Architecture, Henry S. Jessup, P.C., Monaco Construction Corp., and Gamill Engineering, P.C., Third-Party Defendants.



1033/05



Seyfarth Shaw LLP

Attorney for Plaintiffs

620 Eighth Avenue

New York, NY 10018

Weg and Myers, P.C.

Attorney for Defendants

52 Duane Street

New York, NY 10007

Donald Scott Kurtz, J.

Plaintiffs move for an order, pursuant to CPLR §§4101 and 4102, striking the defendants' demand for a jury trial. Defendants cross-move for an order, pursuant to CPLR§3025(b), granting defendants leave to amend their answer with counterclaims.

Plaintiffs commenced this action by the filing of a summons and complaint on January 12, 2005. In their complaint, plaintiffs allege that their property, which is immediately adjacent to defendants' property, is presently under construction for the purposes of building a home and that defendants' porch encroached on their property. In their complaint, plaintiffs seek both legal and equitable relief, including an order compelling the removal of defendants' porch as well as an order enjoining them from wrongfully trespassing on plaintiffs' property.

On February 17, 2005, defendants filed an answer and counterclaim. On February 28, 2005, defendants filed their first amended answer and counterclaim. Two more amended answers and counterclaims followed. Defendants' counterclaims sound in negligence and trespass and request both legal and equitable relief, including punitive damages for the alleged violation of their civil rights; a permanent injunction prohibiting plaintiffs from entering their property; a permanent injunction prohibiting plaintiffs from undertaking any further construction; and monetary relief for the alleged damage caused to defendants' home. On our about June 18, 2008, defendants filed a Note of Issue containing a demand for a trial by jury. Plaintiffs now move to strike the jury demand.

In support of the motion to strike defendants' jury demand, plaintiffs point to those portions of defendants' counterclaims which seek a "permanent injunction" preventing plaintiffs from entering their property and a "permanent injunction preventing the Habers [and their contractors] from undertaking any further demolition..." Plaintiffs maintain that much of the relief sought in the counterclaims is clearly equitable in nature and that an irrevocable waiver of the right to a trial by jury occurred at the moment defendants joined equitable claims seeking injunctive relief together with a claim for monetary relief. Plaintiffs contend that subsequent removal or dismissal of those claims does not revive the right to a trial by jury.

In opposition, defendants allege that their counterclaims seeking injunctive relief were merely incidental to the "core counterclaims for monetary damages." Defendants assert that they amended their answer with counterclaims several times and that the third amended answer with counterclaims sought "primarily to recover for damages" to defendants' property. Furthermore, defendants maintain that the injunctive relief sought is now moot because the construction has been completed during the pendency of this action. Defendants also allege that plaintiffs could have moved to strike defendants' jury demand at the outset of the litigation, but since they waited to make this motion, they "undermine the validity of this motion." Finally, defendants argue that if this Court determines that defendants waived their right to a trial by jury, then the Court should grant their cross-motion to amend their answer to "assert facts consistent with the seeking of monetary relief only." [*2]

It is well settled that by "deliberately joining legal and equitable causes of action arising out of the same transaction," a party waives its right to a trial by jury. Mirasola v. Gilman, 104 AD2d 932 (2d Dept 1984). See Gabbay v. Ratchik, 60 AD2d 593 (2d Dept 1977); Heller v. Hacken, 40 AD2d 1012 (2d Dept 1972); Tanenbaum v. Anchor Sav. Bank, 95 AD2d 827 (2d Dept 1983); Whipple v. Trail Properties, Inc., 261 AD2d 470 (2d Dept 1999); Ayromlooi v. Staten Island University Hosp., 7 AD3d 475 (2d Dept 2004). Moreover, where "a defendant interposes a counterclaim of an equitable nature related to a cause of action asserted in the complaint," that defendant "waives a jury trial on all causes of action, whether legal or equitable in nature (citations omitted.)" Herbil Holding Co. v. Mitrany, 11 AD3d 430 (2d Dept 2004). Additionally, any "subsequent amendment of the complaint to eliminate the equitable cause of action and demand for equitable relief" does not revive that right. Whipple v. Trail Properties, Inc., 261 AD2d at 470, supra. See Mirasola v. Gilman, 104 AD2d at 932, supra, (holding that the subsequent removal of the equitable claims from the case through a partial settlement does not revive the right to a trial by jury.)

Defendants cite several cases which stand for the proposition that this Court must look at the "primary character" of the case and whether the equitable counterclaim is incidental or "primary" to any legal counterclaim asserted. See Ingenuit, Ltd. v. Harriff, 56 AD3d 428 (2d Dept 2002); Cadwalader Wickersham & Taft v. Spinale, 177 AD2d 315, 316 (1st Dept 1991). However, several of the cases cited relate to a demand for an accounting, which was necessary merely to calculate the damages under the legal claim. See Id. In fact in Ingenuit, the Appellate Division, Second Department stated that "the defendant's counterclaim, despite containing a demand for damages, is also equitable in nature since it relates directly to the injunctive relief sought by the plaintiffs in the complaint (citation omitted)." Here, defendants' counterclaims, which seek to permanently enjoin plaintiffs from undertaking any further construction and enjoin plaintiffs from entering their property, are directly related to the equitable relief sought by plaintiffs. Moreover, even if this Court were to examine the "primary" nature of defendants' counterclaims, it would be required to examine the counterclaims at the time they were asserted and not at a later time when the relief sought may have become moot. See Giammalvo v 2170-2178 Broadway, 293 A.D2d 390 (1st Dept 2002). Otherwise, any party opposing a motion to strike a jury demand could simply amend their complaint or answer to remove the equitable relief sought, especially when such relief has become moot or has been dismissed.

The Court finds that defendants deliberately joined legal and equitable relief in their counterclaims. Moreover, defendants served several amended answers with counterclaims and in each one, they deliberately joined legal and equitable relief. The Court also finds that the relief sought in the counterclaims were primarily equitable in nature. Moreover, a motion to strike a jury demand may be made at any time up to the opening of trial. Consequently, the Court finds that this motion to strike was not untimely. See A.J. Fritschy Corp. v Chase Manhattan Bank, 36 AD2d 600 (1st Dept 1971).

Finally, "leave to amend or supplement pleadings should be freely granted unless the [*3]amendment sought is palpably improper or insufficient as a matter of law, or unless prejudice and surprise directly result from the delay in seeking the amendment." Maloney Carpentry, Inc. v. Budnik, 37 AD3d 558 (2d Dept 2007). See CPLR §3025(b); Ricca v. Valenti, 24 AD3d 647, 648 (2d Dept 2005); Fisher v. Braun, 227 AD2d 586 (2d Dept 1996). "The decision to allow or disallow the amendment is committed to the court's discretion." Edenwald Contracting Co. Inc. v City of New York, 60 NY2d 957 (1983). See Mayers v. D'Agostino, 58 NY2d 696, 698 (1982); Pergament v. Roach, 41 AD3d 569, 572 (2d Dept 2007). The Court finds that defendants' cross-motion to amend their answer with counterclaims will not cause prejudice nor surprise to plaintiffs since defendants are withdrawing all equitable claims and not adding any new claims. However, the removal of all of the equitable relief still does not revive defendants' right to a trial by jury for the reasons stated above. Therefore, defendants' cross-motion to amend is granted and they shall serve the amended answer with counterclaims within ten (10) days hereof.

Consequently, plaintiffs' motion to strike defendants' jury demand is granted and the cross-motion to amend defendants' answer with counterclaims is granted. This matter is hereby transferred to the non-jury trial readiness part and shall appear on its calendar on November 19, 2009.

The foregoing shall constitute the Decision and Order of the Court.



DONALD SCOTT KURTZ

Justice, Supreme Court