Security Pacific National Bank v. Evans , 148 A.D.3d 465 ( 2017 )

Security Pac. Natl. Bank v Evans (2017 NY Slip Op 01792)

Security Pac. Natl. Bank v Evans

2017 NY Slip Op 01792

Decided on March 9, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 9, 2017
Sweeny, J.P., Mazzarelli, Moskowitz, Kahn, JJ.

3360 22899/92

[*1]Security Pacific National Bank, Plaintiff-Respondent,

v

Tracie Evans, Defendant-Appellant, Arnold Lepelstat, et al., Defendants.

Tracie Evans, appellant pro se.

Belkin Burden Wenig & Goldman, LLP, New York (Magda L. Cruz of counsel), for respondent.

Order, Supreme Court, New York County (Shlomo S. Hagler, J.), entered April 14, 2015, which, among other things, granted plaintiff's motion to strike defendant Tracie Evans's jury demand, unanimously affirmed, without costs.

The motion court properly determined that defendant has no right to a jury trial on the triable issues identified by this Court on a prior appeal (62 AD3d 512, 514 [1st Dept 2009]). Since both parties sought equitable relief — that is, specific performance of their settlement agreement or injunctive relief — defendant is not entitled to a jury trial (see Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481, 482 [2d Dept 2009]; Trepuk v Frank, 104 AD2d 780, 781 [1st Dept 1984]; CPLR 4101, 4102[c]). Even if defendant now asserts a claim for money damages, and even if she were to withdraw her equitable claims, that would not revive or create a right to a trial by jury that was waived by asserting equitable claims with respect to the same transaction (see Zimmer-Masiello, Inc. v Zimmer, Inc., 164 AD2d 845, 846-847 [1st Dept 1990]; Trepuk, 104 AD2d 780; cf. CPLR 4102[c]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 9, 2017

CLERK