Opinion
No. 2690 Index No. 109136/09 No. 2024-02305
10-03-2024
Marilyn Schneider, Plaintiff-Appellant, v. 254 PAS Property LLC, et al., Defendants-Respondents.
Gallett Dreyer & Berkey, LLP, New York (Morrell I. Berkowitz of counsel), for appellant. Gartner + Bloom PC, New York (Giancarlo S. Vecchiarelli of counsel), for respondents.
Gallett Dreyer & Berkey, LLP, New York (Morrell I. Berkowitz of counsel), for appellant.
Gartner + Bloom PC, New York (Giancarlo S. Vecchiarelli of counsel), for respondents.
Before: Kern, J.P., Oing, Kapnick, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered on or about March 20, 2024, which granted defendants' motion to strike the jury demand, unanimously affirmed, without costs.
Plaintiff has waived her right to a jury trial, as the complaint mingles legal and equitable claims arising out of the same alleged wrongs, and seeks legal and equitable relief to address those wrongs (see Marko v Korf, 166 A.D.3d 545 [1st Dept 2018]; Security Pac. Natl. Bank v Evans, 148 A.D.3d 465 [1st Dept 2017]; CPLR 4101[1]). While many of plaintiff's claims are based on alleged physical and mental injuries and property damage for which she seeks monetary damages, the complaint makes several distinct claims for equitable relief that cannot be satisfied by a sum of money alone (see Errant Gene Therapeutics, LLC v Sloan-Kettering Inst. for Cancer Research, 176 A.D.3d 459 [1st Dept 2019], lv dismissed 35 N.Y.3d 1060 [2020]; see also Pheonix Garden Rest. v Chu, 234 A.D.2d 233, 234 [1st Dept 1996]). Moreover, since plaintiff is still a tenant in the building, it is unclear how her claims for injunctive relief are now "moot." Even if these claims became moot, the right to a jury trial was not revived (see Giammalvo v 2170-2178 Broadway, 293 A.D.2d 390 [1st Dept 2002]).
Plaintiff's arguments with respect to Real Property Law § 259-c are misplaced, as this statute invalidates any lease provision which purports to waive the right to a jury trial in an action for personal injury or property damage. It has no bearing on this action, as plaintiff's mingling of her claims for money damages with independent claims sounding in equity constituted a waiver of her right to a jury trial (see Pheonix Garden Rest., 234 A.D.2d at 234).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.