IN RE: Mary PETROCELLI (2003)

In a proceeding to settle the co-executors' amended intermediate account, the appeal is from an order of the Surrogate's Court, Queens County (Nahman, S.), dated January 4, 2002, which granted the motion of the co-executors to vacate the objectant's demand for a jury trial.

ORDERED that the order is affirmed, without costs or disbursements.

The relevant facts underlying this appeal are set forth in the decision on the companion appeal (see Matter of Petrocelli, 307 A.D.2d 358, 763 N.Y.S.2d 74, 2003 WL 21754166 [Appellate Division Docket No. 2002-04238, decided herewith] ).

Contrary to the objectant's contention, the Surrogate's Court correctly granted the motion of the co-executors to strike his jury demand.   The objectant argues that certain of his objections allege conversion and/or seek replevin, and thus, the proceeding is one in law, entitling him to a jury trial.   However, the right to the relief sought is not predicated upon legal title in the objectant.   Rather, it is predicated upon the alleged ownership of assets by the decedent at the time of her death.   Therefore, the nature of the proceeding is in equity, not law, and the objectant's jury demand was properly stricken (see SCPA 502[1];  Cobblah v. Katende, 275 A.D.2d 637, 713 N.Y.S.2d 723;  cf.  Matter of Sackler, 222 A.D.2d 9, 644 N.Y.S.2d 796).