Opinion
October 27, 1994
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
The second counterclaim, which alleges failure of the Bank to collect certain monies on behalf of Bass Bass, Inc. pursuant to, inter alia, an irrevocable letter of credit issued by Metro Plaza, Inc., is not based on the notes upon which plaintiff sues and which contain a jury trial waiver. Accordingly, the second counterclaim should be severed from the other counterclaims and presented to a jury (Chemical Bank v. Summers, 67 A.D.2d 856).
We find that the remaining counterclaims are clearly based on the notes, and are thus covered by the jury waiver recited in those notes. (Chemical Bank v. Summers, supra.)
Concur — Carro, J.P., Rosenberger, Ellerin, Nardelli and Tom, JJ.