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Estate of Greenberg v. Schefler

Supreme Court, Appellate Term, First Department
Oct 26, 1979
102 Misc. 2d 308 (N.Y. App. Term 1979)


October 26, 1979

Appeal from the Civil Court of the City of New York, New York County, BEVERLY S. COHEN, J.

Finkelstein, Schwartz Goldstein, P.C. (Robert D. Goldstein and Chester J. Weinstein of counsel), for appellant.

Michael D. Kaufman and George S. Locker for respondent.

Order entered July 5, 1979 (B. COHEN, J.) is reversed, with $10 costs, and the landlord's motion to strike tenant's jury demand is granted.

Special Term determined the jury waiver provision of the lease between the parties to be unconscionable as a matter of law and thus unenforceable (Real Property Law, § 235-c, subd 1). We disagree.

The courts have consistently upheld the validity of jury waiver clauses. In 1975, this court noted, "A provision in a lease waiving a trial by jury in the event of any litigation between the parties is valid and binding" (Avenue Assoc. v Buxbaum, 83 Misc.2d 719). The viability of jury waiver provisions has been approved both before and after Avenue Assoc. v Buxbaum (supra). (Waterside Holding Corp. v Lask, 233 App. Div. 456; Schwartz v Hillman, NYLJ, July 28, 1976, p 8, col 3; Jema Props. v McLeod, Nov. 20, 1975, p 6, col 2; Perlow v Mankato, Sept. 16, 1975, p 10, col 5; Fay's Drug Co. v P C Prop. Co-op., 51 A.D.2d 887; Koslowski v Palmieri, 94 Misc.2d 555, revd on other grounds 98 Misc.2d 885; Birchwood Assoc. v Steigauf, 75 Misc.2d 728, 730.)

Nor do the facts herein warrant a finding of unconscionability. This defendant did not enter into this lease. She is apparently an undertenant or cotenant of the original lessee. The record reveals nothing of the circumstances surrounding the execution of the lease. Indeed no claim of deceit has been made and the size of the print setting forth the jury waiver provision is identical to that of almost all other printed covenants and conditions of the lease (James Talcott, Inc. v Wilson Hosiery Co., 32 A.D.2d 524). As the court observed in James Talcott, Inc. v Wilson Hosiery Co. (supra, at p 525) "the signer of a deed or other instrument, expressive of a jural act is conclusively bound thereby * * * 'Not to have read the contract or to have had it read to him before signing, if that be the fact * * * furnishes no basis for his repudiation of any of its terms' [citations omitted]" (cf. Kwiatkowski v Brotherhood of Amer. Yeomen, 243 N.Y. 394; Manufacturers Traders Trust Co. v Commercial Door Hardware, 51 A.D.2d 362).

Concur: DUDLEY, P.J., HUGHES and ASCH, JJ.

Summaries of

Estate of Greenberg v. Schefler

Supreme Court, Appellate Term, First Department
Oct 26, 1979
102 Misc. 2d 308 (N.Y. App. Term 1979)
Case details for

Estate of Greenberg v. Schefler

Case Details

Full title:Estate of CHARLES GREENBERG, ETHEL STUTSKY, as Executrix, Appellant, v…

Court:Supreme Court, Appellate Term, First Department

Date published: Oct 26, 1979


102 Misc. 2d 308 (N.Y. App. Term 1979)
425 N.Y.S.2d 909

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