JAMES BENJAMIN INC v. [And A Third Party Action]. (2001)

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered January 31, 2001, which granted defendants' motion to strike the jury demand by plaintiffs and third-party defendants, unanimously reversed, on the law, with costs, the motion denied and the jury demand reinstated.

 This is an action to replevy personal property levied upon by defendants, and for damages for conversion of said property.   Defendants' motion to strike plaintiffs' jury demand was grounded on a standard jury waiver clause in the lease between the parties.   In Article 25 of the lease, the parties agreed to waive trial by jury in any action “except for personal injury or property damage”.   The exception preserves the right to a jury trial in an action for tortious damage by conversion.   The waiver in the lease is thus inapplicable.

 The remaining question is whether the purported joinder of legal and equitable claims forfeited plaintiffs' right to a jury trial.   Replevin of chattel has traditionally been considered a remedy at law (Boyle v. Kelley, 42 N.Y.2d 88, 396 N.Y.S.2d 834, 365 N.E.2d 866), and is even recognized as such by statute (CPLR 7103).   Since the second and third causes of action were not equitable in nature, there was no impediment to plaintiffs' jury demand.