Opinion
2021-01833 Index 157621/12
03-10-2022
In the Matter of Uni-Rty Corp. et al., Petitioners-Respondents, v. New York Guangdong Fin., Inc., et al., Respondents-Appellants. Appeal No. 14881
Cooley LLP, New York (William J. Schwarz of counsel), for New York Guangdong Finance, Inc., Guangdong Building Inc., The Estate of Joseph Chu, Alexander Chu, Centre Plaza, L.L.C. and Eastbank, N.A., appellants. White & Case LLP, New York (Jacqueline L. Chung of counsel), for China Construction Bank and Agricultural Bank of China, appellants. Kaiser Saurborn & Mair, P.C., New York (Henry L. Saurborn, Jr. of counsel), for respondents.
Cooley LLP, New York (William J. Schwarz of counsel), for New York Guangdong Finance, Inc., Guangdong Building Inc., The Estate of Joseph Chu, Alexander Chu, Centre Plaza, L.L.C. and Eastbank, N.A., appellants.
White & Case LLP, New York (Jacqueline L. Chung of counsel), for China Construction Bank and Agricultural Bank of China, appellants.
Kaiser Saurborn & Mair, P.C., New York (Henry L. Saurborn, Jr. of counsel), for respondents.
Before: Kapnick, J.P., Friedman, González, Rodriguez, Pitt, JJ.
Order, Supreme Court, New York County (Laurence L. Love, J.), entered April 23, 2021, which denied the motion of respondents New York Guangdong Finance, Inc. (NYGFI), Guandgong Building Inc., Estate of Joseph Chu, Alexander Chu, Centre Plaza, L.L.C., and Eastbank, N.A. to strike petitioners' demand for a jury trial and the cross motion of China Construction Bank and Agricultural Bank of China (together, the banks) for the same relief, unanimously reversed, on the law, and the motion and cross motion granted, without costs.
Petitioners allege that the banks and Joseph and Alexander Chu together, the individual Chus, who were all shareholders of NYGFI, engineered a 2005 settlement of shareholder derivative actions to insulate NYGFI assets from claims asserted by petitioners in a then-pending federal action against NYGFI and the individual Chus. Petitioners ultimately prevailed in the federal action and in 2013 docketed a judgment against NYGFI that remains unsatisfied. Petitioners commenced a "turnover" special proceeding under CPLR article 52 and sought a judgment among other things, "seeking ... 'turnover' of NYGFI assets to satisfy [p]etitioners' judgment... compelling the non-debtor [r]espondents to disclose, bring within the jurisdiction, and make accessible for execution... all cash, income, distributions and funds... including all membership interests in limited lability companies... and shares in corporations and interests in partnerships... and granting the appointment of a CPLR [a]rticle 52 receiver."
Supreme Court should have stricken petitioners' jury demand. As we have stated "[a] [p]laintiff is not entitled to a jury trial... [when] he seeks to enforce a judgment against a party other than the judgment debtor, which is an equitable claim" (Jonke v Foot Locker, Inc., 181 A.D.3d 544, 545 [1st Dept 2020], citing Matter of Colonial Sur. Co. v Lakeview Advisors, LLC, 125 A.D.3d 1292, 1295 [4th Dept 2015], lv denied 26 N.Y.3d 901 [2015]; see also David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 5225:6 at 391).
Even assuming that petitioners included a request for legal relief, by demanding money damages "[t]he rule is fundamental that where a plaintiff seeks legal and equitable relief in respect of the same wrong, his right to trial by jury is lost" (Trepuk v Frank, 104 A.D.2d 780, 780-781 [1st Dept 1984], quoting Di Menna v Cooper & Evans Co., 220 NY 391, 396 [1917]; see also Marko v Korf, 166 A.D.3d 545, 546 [1st Dept 2018]). Moreover, "[i]nclusion of a demand for money damages in the [pleading] does not, in and of itself, guarantee entitlement to a jury trial. Rather, it must be determined whether the main thrust of the action is for legal damages or for equitable relief" (Phoenix Garden Rest. v Chu, 234 A.D.2d 233, 234 [1st Dept 1996] [citations omitted]).
The primary character of the matter before us is equitable (see Cadwalader Wickersham & Taft v Spinale, 177 A.D.2d 315, 316 [1st Dept 1991]). We note that petitioners previously commenced a plenary action against parties including respondents, and voluntarily discontinued that action.
We have considered petitioners' remaining contentions and find them unavailing.