Hebrankov.Bioline Laboratories, Inc.

Appellate Division of the Supreme Court of New York, Second DepartmentApr 17, 1989
149 A.D.2d 567 (N.Y. App. Div. 1989)
149 A.D.2d 567540 N.Y.S.2d 264

April 17, 1989

Appeal from the Supreme Court, Kings County (Golden, J.).


Ordered that the order is affirmed, with costs.

The prevailing rule is that the deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial (see, CPLR 4102 [c]; Mirasola v. Gilman, 104 A.D.2d 932; Tanenbaum v Anchor Sav. Bank, 95 A.D.2d 827). However, the right to a jury trial is to be determined by the facts alleged in the complaint and not by the prayer for relief (see, e.g., City of Syracuse v Hogan, 234 N.Y. 457, 461; Ketcham v. Wilbur, 218 App. Div. 350, 351, affd 244 N.Y. 609; Cunningham and Sullivan, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 4101, at 91). Where a plaintiff alleges facts upon which monetary damages alone will afford full relief, inclusion of a demand for equitable relief in the complaint's prayer for relief will not constitute a waiver of the right to a jury trial (see, Murphy v American Home Prods. Corp., 136 A.D.2d 229, 232; Cunningham and Sullivan, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 4101, at 91).

An evaluation of the pleadings in the instant case reveals that the gravamen of the plaintiffs' action is to recover damages for breach of an indemnity agreement. Accordingly, the character of the action is essentially legal and even though the prayer for relief contains a demand which is partially equitable in nature, an award of monetary damages only would afford a full and complete remedy to the plaintiffs. Therefore, the trial court properly denied the defendants' motion to strike the jury demand. Mollen, P.J., Thompson, Lawrence and Kunzeman, JJ., concur.