Opinion
1135N
May 21, 2002.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered July 25, 2001, which, in an action for money damages alleging fraud committed by a fiduciary, denied defendant's motion to strike plaintiff's jury demand, unanimously affirmed, with costs.
Eli Uncyk, for plaintiff-respondent.
John McConnell, for defendant-appellant.
Before: Tom, J.P., Andrias, Rubin, Friedman, Marlow, JJ.
The motion court correctly held that plaintiff's assertion of the previously dismissed cause of action for reformation did not result in a waiver of the right to a jury trial. The primary character of the action has always been legal in nature. Full and complete relief could have been provided under the facts originally pleaded with an award of money damages representing the amount that defendant allegedly underpaid for plaintiff's decedent's business as a result of the alleged fraud (see,Murphy v. American Home Prods. Corp., 136 A.D.2d 229, 233-234; Cadwalader Wickersham Taft v. Spinale, 177 A.D.2d 315; Harris v. Trustco Bank, 224 A.D.2d 790).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.