Opinion
5837 Index 651473/11
02-27-2018
ZOHAR CDO 2003–1 LIMITED, et al., Plaintiffs–Appellants, v. XINHUA SPORTS & ENTERTAINMENT LIMITED, et al., Defendants, Loretta Freddy Bush, Defendant–Respondent.
Schlam Stone & Dolan LLP, New York (Joshua Wurtzel of counsel), for appellants. Drinker Biddle & Reath LLP, New York (Clay J. Pierce of counsel), for respondent.
Schlam Stone & Dolan LLP, New York (Joshua Wurtzel of counsel), for appellants.
Drinker Biddle & Reath LLP, New York (Clay J. Pierce of counsel), for respondent.
Andrias, J.P., Gesmer, Kern, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 14, 2017, which granted the motion of defendant Loretta Freddy Bush to strike plaintiffs' demand for a jury trial, unanimously affirmed, with costs.
The court properly granted the motion to strike plaintiffs' demand for a jury trial. While a party alleging fraudulent inducement that elects to bring an action for damages, as opposed to opting for rescission, may, under certain circumstances, still challenge the validity of the underlying agreement in a way that renders the contractual jury waiver provision in that agreement inapplicable to the fraudulent inducement cause of action (see e.g. J.P. Morgan Sec. Inc. v. Ader, 127 A.D.3d 506, 507–508, 9 N.Y.S.3d 181 [1st Dept. 2015] ; Ambac Assur. Corp. v. DLJ Mtge. Capital, Inc., 102 A.D.3d 487, 956 N.Y.S.2d 891 [1st Dept. 2013] ), such circumstances are not present in this case. Plaintiffs merely seek to enforce the underlying agreements by obtaining damages for fraudulent inducement, rather than rescind the agreements, and do not challenge the validity of the agreements in any manner other than by making factual allegations of fraud in the inducement (see Leav v. Weitzner, 268 App.Div. 466, 51 N.Y.S.2d 775 [1st Dept. 1944] ).