ANESTHESIA ASSOCIATES OF MOUNT KISCO LLP v. NORTHERN WESTCHESTER HOSPITAL CENTER (2009)

In an action, inter alia, to recover damages for breach of contract, and for declaratory and injunctive 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 Northern Westchester Hospital, Joel Seligman, and Michael Finkelstein to strike the plaintiffs' jury demand.

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' jury demand.  “The prevailing rule is that the deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial” (Hebranko v. Bioline Labs., 149 A.D.2d 567, 568, 540 N.Y.S.2d 264;  see CPLR 4102[c];  Mirasola v. Gilman, 104 A.D.2d 932, 932, 480 N.Y.S.2d 548;  Tanenbaum v. Anchor Sav. Bank, 95 A.D.2d 827, 827, 464 N.Y.S.2d 19).   “Once the right to a jury trial has been intentionally lost by joining legal and equitable claims, any subsequent dismissal, settlement or withdrawal of the equitable claim(s) will not revive the right to trial by jury” (Zimmer-Masiello, Inc. v. Zimmer, Inc., 164 A.D.2d 845, 846-847, 559 N.Y.S.2d 888;  see Whipple v. Trail Props., 261 A.D.2d 470, 470, 690 N.Y.S.2d 132;  Mirasola v. Gilman, 104 A.D.2d at 932, 480 N.Y.S.2d 548;  Tanenbaum v. Anchor Sav. Bank, 95 A.D.2d at 827, 464 N.Y.S.2d 19).   However, “[w]here a plaintiff alleges facts upon which monetary damages alone will afford full relief, inclusion of a demand for equitable relief in the complaint's prayer for relief will not constitute a waiver of the right to a jury trial” (Hebranko v. Bioline Labs., 149 A.D.2d at 568, 540 N.Y.S.2d 264;  see O'Brien v. Fitzgerald, 143 N.Y. 377, 381, 38 N.E. 371;  Harris v. Trustco Bank N.Y., 224 A.D.2d 790, 791, 637 N.Y.S.2d 527;  Hudson View II Assoc. v. Gooden, 222 A.D.2d 163, 168, 644 N.Y.S.2d 512;  Murphy v. American Home Prods. Corp., 136 A.D.2d 229, 232, 527 N.Y.S.2d 1).

 “The declaratory judgment action ․ can be legal or equitable in nature, and to determine whether a party is entitled to a jury trial, ‘it is necessary to examine which of the traditional actions would most likely have been used to present the instant claim had the declaratory judgment action not been created’ ” (State Farm Mut. Auto. Ins. Co. v. Sparacio, 25 A.D.3d 777, 778-779, 809 N.Y.S.2d 151, quoting Independent Church of Realization of Word of God v. Board of Assessors of Nassau County, 72 A.D.2d 554, 555, 420 N.Y.S.2d 765).   Here, where the declaratory judgment cause of action seeks to have a contract between two of the defendants declared null and void, the traditional action “most likely [to] have been used to present the instant claim had the declaratory judgment action not been created” would have been a claim for rescission (Independent Church of Realization of Word of God v. Board of Assessors of Nassau County, 72 A.D.2d at 555, 420 N.Y.S.2d 765).   Since an action for rescission sounds in equity, the defendants are correct that the cause of action for declaratory relief in this case is equitable in nature.   Moreover, monetary damages would not have provided the relief sought in the cause of action (cf. State Farm Mut. Auto. Ins. Co. v. Sparacio, 25 A.D.3d 777, 809 N.Y.S.2d 151;  Martell v. North Riv. Ins. Co., 107 A.D.2d 948, 484 N.Y.S.2d 363).   Accordingly, the Supreme Court correctly determined that by including the declaratory cause of action in the first amended complaint, as well as the cause of action for injunctive relief in the original complaint, the plaintiffs waived their right to a jury trial.