Petra Cablevision Corp. v. Teleprompter Corp.

In an action for money damages and injunctive relief, plaintiff appeals from an order of the Supreme Court, Suffolk County, dated April 16, 1975, which (1) granted defendants’ motions (a) to strike plaintiff’s demand for a jury trial and (b) to amend their answer to plead the Statute of Frauds as an affirmative defense, and (2) refused to permit plaintiff to withdraw its demand for equitable relief. Order affirmed, with $20 costs and disbursements. The joinder by plaintiff of legal and equitable claims constituted a waiver of its right to a trial by jury (Heller v Hacken, 40 AD2d 1012; Vincent v Cooperman, 283 App Div 812). In affirming so much of the order as permits defendants to serve an amended answer adding the Statute of Frauds as a defense, we do not reach the question of the sufficiency of the defense. Rabin, Acting P. J., Hopkins, Christ and Munder, JJ., concur; Shapiro, J., concurs in the affirmance of the granting of the motion to amend the answer, but otherwise dissents and votes to reverse so much of the order as struck plaintiff’s demand for a jury trial and to deny the motion for that relief, with the following memorandum: plaintiff filed its statement of readiness and note of issue, together with its demand for a jury trial, on May 23, 1972. Thereafter, plaintiff offered to waive its right to a jury trial, but defendants, by prior counsel on July 27, 1972 refused the offer, stating that they would prefer a trial by jury. It was not until some three years later that defendants, with new counsel, formally moved, by an order to show cause signed on April 8, 1975, to strike plaintiff’s jury demand. Under the circumstances, defendants’ conduct constituted a waiver of their right to move against plaintiff’s demand for a jury trial. Defendants ought not to be permitted to delay the trial for three years and then move on the eve of trial to have the jury demand stricken.