Ambac Assur. Corp. v DLJ Mtge. Capital, Inc.

Ambac Assur. Corp. v DLJ Mtge. Capital, Inc. 2013 NY Slip Op 00156 Decided on January 15, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 15, 2013
Saxe, J.P., Renwick, Freedman, Román, Gische, JJ.
9002 600070/10

[*1]Ambac Assurance Corporation, et al., Plaintiffs-Appellants,

v

DLJ Mortgage Capital, Inc., et al., Defendants-Respondents.




Patterson Belknap Webb & Tyler LLP, New York (Harry
Sandick of counsel), for appellants.
Orrick, Herrington & Sutcliffe LLP, New York (John Ansbro
of counsel), for respondents.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 13, 2011, which, to the extent appealed from, upon reargument, struck plaintiffs' demand for a jury trial, unanimously reversed, on the law, without costs, and the jury demand reinstated.

The complaint alleges repeatedly that the insurance agreement was obtained through various types of fraud, making it clear that fraudulent inducement is plaintiff's primary claim. Thus, the provision of the agreement that waives the right to trial by jury does not apply (see MBIA Ins. Corp. v Credit Suisse Sec. [USA], LLC, __ AD3d __ [1st Dept 2013], Appeal No. 9003, decided simultaneously herewith; Wells Fargo Bank, N.A. v Stargate Films, Inc., 18 AD3d 264, 265 [1st Dept 2005]). It is of no consequence that the complaint does not contain the word "rescission" or expressly state that it challenges the validity of the insurance agreement (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 15, 2013

CLERK