Commercial Division Blog

Posted: April 26, 2024 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Juries

Court Denies Motion To Strike Jury Demand

On April 9, 2024, Justice Andrea Masley denied defendants’ motion to strike plaintiff’s jury demand.  In Khan v. Garg, 652334/2013, the Court explained: 

While the court agrees that plaintiff filed the Note of Issue late, and admittedly lost track of the filing deadline for summary judgment, the court rejects defendants' argument that plaintiff's jury demand is late. (NYSCEF 1641, Sept. 15, 2023 tr 14:7-17 [mot. seq. nos. 029, 040].) In New York, the procedure is that the jury demand is to be filed with the Note of Issue. (CPLR 3402; CPLR 4102 [a]; NYSCEF 1355, Note of Issue filed May 3, 2023 at 1.) It need not be demanded in the complaint as defendants insist.

Plaintiff did not waive a jury trial with his equitable claims. Plaintiff's derivative claim may be tried by a jury. (Abrams v Rogers, 1992 WL 12664210, *1 [Sup Ct, NY County 1992] ["legal claims are not magically converted into equitable issues by their presentation to a court of equity in a derivative suit" (internal quotation marks and citation omitted)], affd 195 AD2d 349 [1st Dept 1993]; See also Fedoryszyn v Weiss, 62 Misc 2d 889, 890 [Sup Ct, Nassau County 1970].) Breach of fiduciary duty is also triable by a jury. (Miller v Epstein, 293 AD2d 282, 282 [1st Dept 2002].) Since plaintiff seeks damages for his unjust enrichment claim, it too is triable by a jury. (Id.; see PJI 4.2 jury charges for unjust enrichment claim].) Finally, while plaintiff asserts equitable claims - accounting and corporate deadlock - they do not destroy the predominant monetary nature of this action. (Lipson v Dime Sav. Bank, FSB, 203 AD2d 161, 163 [1st Dept 1994].)

Contact the Commercial Division Blog Committee at if you or a client have questions concerning jury demands.