Opinion
2013-01-15
MBIA INSURANCE CORPORATION, Plaintiff–Appellant, v. CREDIT SUISSE SECURITIES (USA), LLC, et al., Defendants–Respondents.
Patterson Belknap Webb & Tyler LLP, New York (Erik Haas of counsel), for appellant. Orrick, Herrington & Sutcliffe LLP, New York (John Ansbro of counsel), for respondents.
Patterson Belknap Webb & Tyler LLP, New York (Erik Haas of counsel), for appellant. 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 renewal, struck plaintiff's 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 *892trial by jury does not apply ( see Ambac Assur. Corp. v. DLJ Mtge. Capital, Inc., 102 A.D.3d 487, 956 N.Y.S.2d 891 [1st Dept. 2013], Appeal No. 9002, 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] ).