CAPITAL LLC JH LLC v. CORE PLUMBING HEATING LLC (2018)

Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion to strike a jury demand

PAPERS/NUMBERED

Notice of Motion and Affidavits Annexed 1

Answering Affidavits 2

Replying Affidavits 3

Sur-Reply Affidavits

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

J.H. Capital LLC aka JH Capital LLC (Plaintiff)'s motion to strike Core Plumbing & Heating, LLC and Peter Skyllas's (the Defendants) jury demand is granted for the following reasons below.

The Relevant Facts and Circumstances

Titan P & H LLC (Titan), was incorporated in 2010 and conducts business in the plumbing and heating industry. Peter Skyllas was an owner/member of Titan and exclusively controlled the business of Titan. He handled the books, records, assets, accounts and funds of Titan.

Titan borrowed $800,000 (the Loan) from the Plaintiff pursuant to a a promissory note (Note), dated November 19, 2010. When Titan failed to repay the Loan in accordance with the terms of the Note, Plaintiff sued Titan and obtained a judgment in the amount of $295,403.08 (the Judgment). To date, the Judgment remains unpaid.

Core Plumbing & Heating, LLC (Core) was formed by Mr. Skyllas to be the successor of Titan. Following Core's formation, Mr. Skyllas transferred the assets and business of Titan to Core.

Plaintiff brings this action seeking (x) declaration that the transfers from Titan to Core of accounts receivables, vehicles, plumbing equipment, contracts for plumbing work and bank accounts constitute fraudulent conveyances and to have such transfers voided, or, in the alternative, to levy execution upon the property/assets conveyed to Core up to the amount of the Judgment pursuant to section 276-a of the New York Debtor and Creditor Law, and (y) reasonable attorney's fees.

Plaintiff brings this motion to strike the Defendants jury demand arguing that this is an equitable action with only a monetary demand for attorneys' fees and as such, under established precedent, a jury trial is inappropriate.

At issue is whether an action to set aside certain conveyances as fraudulent with a demand for attorney's fees is equitable in nature.

An action to set aside a conveyance as fraudulent is equitable in nature and does not give rise to the right to a jury trial. See Phoenix Garden Rest. Inc. v. Chu, 234 AD2d 233, 234, 651 N.Y.S.2d 510 (1996); Cadwalader Wickersham & Taft v. Spinale, 177 AD2d 315, 576 N.Y.S.2d 24 (1991). The First Department has held that an action seeking attorneys' fees is not sufficient to warrant a jury trial. See Paramount Communications Inc., v. Horsehead Industries, Inc., 287 AD2d 345 (2001).

Accordingly, the Plaintiff's motion to strike the jury demand is granted in its entirety.

Andrew Borrok, J.