| Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp.Ctr. |
| 2009 NY Slip Op 01074 [59 AD3d 481] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Anesthesia Associates of Mount Kisco, LLP, et al.,Appellants, v Northern Westchester Hospital Center et al., Respondents, et al.,Defendants. |
—[*1] Garfunkel Wild & Travis, Great Neck, N.Y. (Roy W. Breitenbach of counsel), forrespondents Northern Westchester Hospital Center, Joel Seligman and Michael Finkelstein. McDonough Marcus Cohn Tretter Heller & Kanca, LLP, New Rochelle, N.Y. (Eli S. Cohnand Randy J. Heller of counsel), for defendants Northeastern Anesthesia Services, P.C., NorthernWestchester Anesthesia Services and David Miller.
In an action, inter alia, to recover damages for breach of contract, and for declaratory andinjunctive relief, the plaintiffs appeal from an order of the Supreme Court, Westchester County(Nicolai, J.), entered May 16, 2007, which granted the motion of the defendants NorthernWestchester Hospital, Joel Seligman, and Michael Finkelstein to strike the plaintiffs' jurydemand.
Ordered that the order is affirmed, with one bill of costs payable to the respondents.
The Supreme Court properly granted the respondents' motion to strike the plaintiffs' jurydemand. "The prevailing rule is that the deliberate joinder of claims for legal and equitable reliefarising out of the same transaction amounts to a waiver of the right to demand a jury trial"(Hebranko v Bioline Labs., 149 AD2d 567, 567-568 [1989]; see CPLR 4102 [c];Mirasola v Gilman, 104 AD2d 932 [1984]; Tanenbaum v Anchor Sav. Bank, 95AD2d 827 [1983]). "Once the right to a jury trial has been intentionally lost by joining legal andequitable claims, any subsequent dismissal, settlement or withdrawal of the equitable claim(s)will not revive the right to trial by jury" (Zimmer-Masiello, [*2]Inc. v Zimmer, Inc., 164 AD2d 845, 846-847 [1990]; seeWhipple v Trail Props., 261 AD2d 470 [1999]; Mirasola v Gilman, 104 AD2d at932; Tanenbaum v Anchor Sav. Bank, 95 AD2d at 827). However, "[w]here a plaintiffalleges facts upon which monetary damages alone will afford full relief, inclusion of a demandfor equitable relief in the complaint's prayer for relief will not constitute a waiver of the right to ajury trial" (Hebranko v Bioline Labs., 149 AD2d at 568; see O'Brien vFitzgerald, 143 NY 377, 381 [1894]; Harris v Trustco Bank N.Y., 224 AD2d 790,791 [1996]; Hudson View II Assoc. v Gooden, 222 AD2d 163, 168 [1996]; Murphyv American Home Prods. Corp., 136 AD2d 229, 232 [1988]).
"The declaratory judgment action . . . can be legal or equitable in nature, and todetermine whether a party is entitled to a jury trial, 'it is necessary to examine which of thetraditional actions would most likely have been used to present the instant claim had thedeclaratory judgment action not been created' " (State Farm Mut. Auto. Ins. Co. v Sparacio, 25 AD3d 777, 778-779[2006], quoting Independent Church of Realization of Word of God v Board of Assessors ofNassau County, 72 AD2d 554, 555 [1979]). Here, where the declaratory judgment cause ofaction seeks to have a contract between two of the defendants declared null and void, thetraditional action "most likely [to] have been used to present the instant claim had the declaratoryjudgment action not been created" would have been a claim for rescission (IndependentChurch of Realization of Word of God v Board of Assessors of Nassau County, 72 AD2d at555). Since an action for rescission sounds in equity, the defendants are correct that the cause ofaction for declaratory relief in this case is equitable in nature. Moreover, monetary damageswould not have provided the relief sought in the cause of action (cf. State Farm Mut. Auto. Ins. Co. vSparacio, 25 AD3d 777 [2006]; Martell v North Riv. Ins. Co., 107 AD2d 948[1985]). Accordingly, the Supreme Court correctly determined that by including the declaratorycause of action in the first amended complaint, as well as the cause of action for injunctive reliefin the original complaint, the plaintiffs waived their right to a jury trial. Miller, J.P., Dickerson,Leventhal and Belen, JJ., concur.