| Kaushal v Singh |
| 2014 NY Slip Op 50671(U) [43 Misc 3d 136(A)] |
| Decided on April 24, 2014 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Plaintiff appeals from (1) a judgment of the Civil Court of the City of New York,
New York County (Andrea Masley, J.), entered on or about November 7, 2012, after a
nonjury trial, in favor of defendant dismissing the action; and (2) an order (same court
and Judge), entered on or about December 21, 2012, which denied plaintiff's motion to
set aside the judgment.
Per Curiam.
Judgment and order (Andrea Masley, J.), entered, respectively, on or about November 7, 2012 and December 21, 2012, reversed, plaintiff's CPLR 4404 motion granted, judgment vacated, and matter remanded for a jury trial before a different judge, with $30 costs to abide the event.
The court erred when it, sua sponte, struck plaintiff's timely filed jury demand upon
the commencement of trial, and then and there proceeded to try the case without a jury.
The breach of contract and fraud causes of action pleaded in the pro se plaintiff's
complaint were legal in nature, with the ad damnum clause only asking for a money
judgment. Plaintiff's pleadings affirmatively sought neither rescission of the underlying
contractual agreement nor any other form of equitable relief, and while the court
apparently concluded otherwise, no rescission claim can be gleaned from any record
statements made by plaintiff during pretrial colloquy with the court. Notably, plaintiff has
consistently sought only the return of the moneys that she invested in the parties'
"business partnership" pursuant to their written contract, and not a declaration that the
contract is null and void (cf. Anesthesia Assocs. of Mt. Kisco, LLP v Northern
Westchester Hosp. Ctr., 59 AD3d 481 [2009]). In any event, plaintiff's purported
inclusion of a rescission claim would not serve to forfeit her right to a jury trial where, as
here, the primary character of her pleaded causes of action remained legal in nature
(see Lex Tenants Corp. v Gramercy N. Assocs., 284 AD2d 278, 278 [2001]
Lipson v Dime Sav. Bank of New York, 203 AD2d 161,
163 [1994]).
In remanding the matter for jury trial, we express no opinion as to the merits other than to note that the record "does not appear to necessarily foreclose a reasonable jury from finding in favor of the [plaintiff]" (Escorp. Inc. v Myers, 43 AD3d 347, 347 [2007]). [*2]
THIS CONSTITUTES THE DECISION AND
ORDER OF THE COURT.
Decision Date: April 24, 2014