Opinion
Index No.: 37327/2007
10-18-2016
LOUIS BURNS, Plaintiff, v. STEPHANIE BURNS, GAYLE DAVIS a/k/a GAIL DAVIS a/k/a GALE DAVIS, MORTGAGE ELECTRONIC REGISTRATION SYSTEM BANK OF AMERICA, Defendants.
DECISION/ORDER
Hon. Kenneth P. Sherman
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion:
| Papers | Numbered |
|---|---|
| Notice of Motion/Order to Show Cause and Affidavits Annexed | 1, Ex.1 |
| Notice of Cross Motion/Opposing Affidavits/Affirmations | 2, |
| Reply Affidavits/Affirmations | 3 |
Upon the foregoing papers, defendant, Stephanie Burns ("defendant"/"defendant Burns"), moves, for an order, to strike plaintiff's jury demand contained in the note of issue herein on the grounds that plaintiff's claims are equitable in nature.
BACKGROUND
The instant action arises out of the transfer of two deeds for the properties located at 256 Decatur Street, Brooklyn, New York ("Decatur property") and 198 Clarkson Avenue, Brooklyn, New York ("Clarkson property") (collectively "the subject premises"). Plaintiff asserts causes of action for fraud, breach of contract, recession, constructive trust and demands an accounting in connection with the alleged fraudulent conveyance of the subject premises.
Prior to February 4, 2002, plaintiff purports to be the deed holder and sole owner of the subject premises. (affirmation of plaintiff's counsel at 4). Plaintiff alleges that between 2001 and 2002, while plaintiff was ill and scheduled for surgery, plaintiff executed a Power of Attorney under duress and pressure from defendant Burns. (affirmation of defendant's counsel, exhibit 1 [Plaintiff's complaint] ¶ 8). Plaintiff claims that he "never intended to transfer the fee estate in the subject premises to the defendant nor give same as a gift." (id. at ¶ 9). Plaintiff also asserts that he was defrauded by defendant Burns who "connived with the second Defendant, Gayle Davis, Esq., ["defendant Davis"] and sneaked into documents constituting the Power of Attorney deeds of transfer of the fee estate in the subject premises." (id. at ¶ 12). Plaintiff claims that he "lacked the requisite capacity to understand and appreciate the nature of the documents" presented to him for signature by defendants. (id. at ¶ 19). Plaintiff asserts that from the year 2002 and continuing to the present, defendant Burns managed and collected the rents from the subject premises. (id. at ¶ 25). Plaintiff also alleges that without plaintiff's express or implied consent, defendant Bums refinanced the subject premises and obtained various mortgages on the subject premises. (id. at ¶¶ 29-34, 36-41).
In support of the instant motion, defendant Burns argues that the nature of the relief sought by the plaintiff in this action, claims of "fraud, breach of contract, constructive trust, and accounting," are all equitable; therefore plaintiff is not entitled to a right to demand a jury trial in this action. (affirmation of defendant's counsel at 1). Defendant Burns also asserts that "[e]ven if the plaintiff were to argue that some of the claims sound in law" the plaintiff waived the right to a trial by jury "by joining [the] equitable claim[s]...with legal claims...arising out of the same transactions." (id. at 2).
Plaintiff, in opposition, argues that his claims do not arise out of the same transaction or occurrence. (affirmation of plaintiff's counsel at 4). Plaintiff also contends that this action is "[a]n action...for determination of a claim to real property under Article 15 of the real property action and proceedings law." (id. at 3). Additionally, plaintiff asserts that pursuant to subdivision 2 of CPLR § 4101 he should be entitled to a jury in this action since he seeks a "determination of a claim to real property under Article 15 of the real property actions and proceeding law." (id.).
In reply to plaintiff's opposition, defendant Burns asserts that although plaintiff's counsel "desire[s] to categorize each of [the] events [which these claims arise from] as constituting separate transaction...the overwhelming facts, and the [p]laintiff's...verified complaint...speaks...to the contrary." (reply affirmation of defendant's counsel at 1-2). Defendant Burns also argues that "[i]t is well settled that plaintiff[']s deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial." (id. at 2)
DISCUSSION
CPLR § 4101 states, in pertinent part, as follows
In the following actions, the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is directed under §4317, except that equitable defenses and counterclaims shall be tried by the court.
1. an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only;
2. an action of ejectment, for dower, for waste, for abatement of and damages for a nuisance; to recover chattel; or for a determination of a claim to real property under article fifteen of the real property action and proceedings law.
It is undisputed that plaintiff has causes of action that sound in equity, and therefore, under CPLR § 4101 (1), the action is not one that "sets forth facts which would permit a judgment for a sum of money only." However, CPLR § 4101 (2) clearly allows for a trial by jury for claims brought under Article 15 of the RPAPL. Therefore, the court must analyze whether the complaint triggers the right to a trial by jury by stating a claim under Article 15 of the RPAPL, and whether the joinder of claims for which there is a right to a trial by jury with those for which there is no such right, waives plaintiff's right to trial by jury.
CPLR § 601 governs joinder of claims and states, in pertinent part, that a "plaintiff in a complaint . . . may join as many claims as he may have against an adverse party . . . (CPLR§ 601[a]). However, "the deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial." (Zutrau v. ICE Systems, Inc., 128 AD3d 1058, 1059 [2d Dept 2015] quoting Anesthesia Assoc. of Mount Kisco, LLP v. Northern Westchester Hosp. Ctr., 59 AD3d 481, 482 [2d Dept 2009]; see CPLR 4102[c]).
Subdivision c of CPLR 4102 provides, in pertinent part, that
A party shall not be deemed to have waived the right to trial by jury of the issues of fact arising upon a claim, by joining it with another claim with respect to which there is no right to trial by jury and which is based upon a separate transaction; or of the issues of fact arising upon a counterclaim, cross-claim or third party claim, by asserting it in an action in which there is no right to trial by jury.
Here, plaintiff joined claims for legal and equitable relief in his complaints. (see affirmation of defendant's counsel, exhibit 1 [plaintiff's verified complaint, plaintiff's amended verified complaint, and plaintiff's amended complaint]; see also Bryant v. Broadcast Music, Inc., 88 AD3d 631, 632 [2d Dept 2011] quoting Anesthesia Assoc. of Mount Kisco, LLP v N. Westchester Hosp. Ctr., 59 AD3d 481, 482 [2d Dept 2009] ["'The prevailing rule is that the deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial'").
In this action, defendant Burns correctly contends that all of the claims collectively stem from the alleged fraudulent deed conveyances of the subject premises by plaintiff to defendant Burns. Thus, this court finds that all of the plaintiff's claims arise out of the same transactions, which are the two deed transfers of the subject premises.
However, "plaintiff did not waive [the] right to jury trial by joining legal and equitable claims [because a] jury trial is guaranteed in action 'for determination of a claim to real property under article fifteen of the real property actions and proceedings law.'" (Paciello v. Graffeo, 8 AD3d 543, 543 [2d Dept 2004] quoting CPLR 4101 [2]). Article 15 of the Real Property Action and Proceedings Law (RPAPL) states, in pertinent part, that
Where a person claims an estate or interest in real property . . . such person . . . may maintain an action against any other person, known or unknown . . . to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, or from the allegations of the complaint, the defendant might make.(RPAPL § 1501).
In a proceeding which asserts claims under article 15 of RPAPL, the statute provides that the complaint must state that the action is brought pursuant to this article. (see RPAPL § 1515[1]). It is noted that neither the verified complaint, amended verified complaint, nor the amended complaint specifically state that the action is being brought pursuant to Article 15 of the RPAPL as required by the statute.
While the court recognizes that in the instant action plaintiff's complaints fails to specifically state that the action is brought pursuant to article 15, as required by statute, the New York Court of Appeals has nonetheless held that a "complaint adequately states a cause of action under article 15 of the Real Property Actions and Proceedings Law [if] the plaintiffs, in essence, allege that they are the owners of record and that 'the defendant claims, or might claim an estate or interest in the real property, adverse to that of the plaintiff'." (Howard v. Murray, 38 NY2d 695, 699 [1976] quoting Real Property Actions and Proceedings Law, § 1515, subd b). The Court of Appeals also stated that "[t]he fact that the plaintiffs did not refer to the article or use the language of the statute is not a fatal defect." (id. citing Niagara Falls Power Co. v White, 292 NY 472, 480; see also CPLR 3026 [providing "[p]leadings shall be liberally construed. Defects shall be ignored if a substantial right of a party is not prejudiced.").
Furthermore, it is well settled from case law that "plaintiff...did not waive [the] right to a jury trial by joining legal and equitable claims[, a] jury trial is guaranteed in an action 'for determination of a claim to real property under article fifteen of the real property actions and proceedings law'." (Paciello, supra. at 544 quoting CPLR 4101 [2]). "The plaintiff was entitled to a jury trial since [the plaintiff's claims seek] to resolve competing claims to real property, regardless of how [plaintiff] characterized it." (see id.; see also 544 City of Syracuse v Hogan, 234 NY 457, 461 [1923]; Eastern Sav. Bank v Stern, 3 AD3d 548 [2d Dept 2004]).
Here, the plaintiff alleges throughout his complaints that he is the rightful owner of the subject premises and never intended to transfer or gift the fee estate in the subject premises to defendant Burns. It is clear from plaintiff's assertions in the complaint that plaintiff has made claims for a determination that defendant Burn's interest in the subject premises is adverse to that of the plaintiff's purported interest in the subject premises. For the foregoing reasons, the court finds that plaintiff has brought "an action 'for determination of a claim to real property under article fifteen of the real property actions and proceedings law'" and is therefore entitled to jury trial pursuant to CPLR § 4101(2), and further, that plaintiff did not waive that right by joining legal and equitable claims, therefore defendant Burn's application to strike plaintiff's jury demand is hereby denied.
Accordingly, it is
ORDERED that defendant's order to show cause is denied in its entirety.
The foregoing constitutes the decision and order of the court.
October 18, 2016
/s/ _________
Kenneth P. Sherman
Justice Supreme Court