Rocha Toussier y Asociados v. Rivero

Order, Supreme Court, New York County (Helen Freedman, J.), entered March 19, 1993, which, insofar as appealed from as limited by appellants’ brief, denied defendants’ motion to strike plaintiff’s demand for a jury trial, unanimously affirmed, with costs. After the plaintiff corporation in receivership was declared once and for all the proper party to pursue this shareholder derivative action, and while the case was pending in the Trial Assignment Part, the defendants challenged plaintiff’s right to a jury trial on the ground that the complaint included demands for equitable relief. Because the plaintiff alleges the existence of a conspiracy among the defendants, but alleges that the conspiracy acted in two fully separable transactions (see, Regan v Martindale, 72 AD2d 676, 677), the primary character of the demand for relief concerning the so-called Armco transaction is legal in nature, and the demand for an accounting is merely incidental (see, Cadwalader Wickersham & Taft v Spinale, 177 AD2d 315). We have considered the defendants’ remaining arguments, and find them to be without merit. Concur — Murphy, P. J., Rosenberger, Wallach, Asch and Williams, JJ.