Jonke v Foot Locker Inc.

Jonke v Foot Locker Inc. 2020 NY Slip Op 02113 Decided on March 26, 2020 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 March 26, 2020
Friedman, J.P., Manzanet-Daniels, Gesmer, González, JJ.
11310 111794/99

[*1]James Jonke, Plaintiff-Respondent,

v

The Foot Locker Inc., et al., Defendants. Foot Locker, Inc., Nonparty Appellant.

Kelley Drye & Warren LLP, New York (Melissa E. Byroade of counsel), for appellant.

Bernadette Panzella, P.C., New York (Bernadette Panzella of counsel), for respondent.

Order, Supreme Court, New York County (George J. Silver, J.), entered on or about March 18, 2019, which, to the extent appealed from as limited by the briefs, set the case down for a jury trial, unanimously reversed, on the law, with costs, the order vacated, and the matter remanded for a determination of plaintiff's motion pursuant to CPLR 3025(c) and 1003 for leave to amend the caption to add or substitute nonparty appellant as successor in interest to defendant The Foot Locker, Inc.

Plaintiff's motion for leave to amend has yet to be decided. In light of the liberal standard for granting leave to amend (see Obstfeld v Thermo Niton Analyzers, LLC, 168 AD3d 1080, 1084 [2d Dept 2019], the court must determine whether the proposed addition or substitution is "plainly lacking in merit" (id. [internal quotation marks omitted]).

Plaintiff is not entitled to a jury trial in any event, since he seeks to enforce a judgment against a party other than the judgment debtor, which is an equitable claim (see Matter of Colonial Sur. Co. v Lakeview Advisors, LLC, 125 AD3d 1292, 1295 [4th Dept 2015], lv denied 26 NY3d 901 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 26, 2020

CLERK