Opinion
2013-01-15
AMBAC ASSURANCE CORPORATION, et al., Plaintiffs–Appellants, v. DLJ MORTGAGE CAPITAL, INC., et al., Defendants–Respondents.
Patterson Belknap Webb & Tyler LLP, New York (Harry Sandick of counsel), for appellants. Orrick, Herrington & Sutcliffe LLP, New York (John Ansbro of counsel), for respondents.
Patterson Belknap Webb & Tyler LLP, New York (Harry Sandick of counsel), for appellants. Orrick, Herrington & Sutcliffe LLP, New York (John Ansbro of counsel), for respondents.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 13, 2011, which, to the extent appealed from, upon reargument, struck plaintiffs' demand for a jury trial, unanimously reversed, on the law, without costs, and the jury demand reinstated.
The complaint alleges repeatedly that the insurance agreement was obtained through various types of fraud, making it clear that fraudulent inducement is plaintiff's primary claim. Thus, the provision of the agreement that waives the right to trial by jury does not apply ( see MBIA Ins. Corp. v. Credit Suisse Sec. [USA], LLC, 102 A.D.3d 488 [1st Dept. 2013], Appeal No. 9003, decided simultaneously herewith; Wells Fargo Bank, N.A. v. Stargate Films, Inc., 18 A.D.3d 264, 265, 795 N.Y.S.2d 18 [1st Dept. 2005] ). It is of no consequence that the complaint does not contain the word “ rescission” or expressly state that it challenges the validity of the insurance agreement ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).