Gordon v. Continental Casualty Co.

— In a declaratory judgment action, defendant appeals from an order of the Supreme Court, Nassau County (Spatt, J.), dated December 17, 1981, which denied its motion to strike the case from the calendar of a nonjury part and transfer it to a jury part. Order reversed, on the law, with $50 costs and disbursements, and motion granted. The complaint demands a declaratory judgment “directfing]” defendant insurance carrier “to reinstate payments to plaintiff* * * in accordance with its obligations in its insurance contract, in the amount of $200.00 per month for each month that he is totally disabled”, and declaring that defendant is “obligated to indemnify plaintiff for any and all retroactive monies due and owing said plaintiff under the policy, at a rate of $200.00 per month with interest thereon, from December 3, 1979, the date defendant stopped all payments on the policy, to the date of the judgment herein.” Defendant answered that it had fulfilled its contractual obligations by paying $200 monthly for five years under the illness provision of their contract and that plaintiff was not entitled to a lifetime benefit of $200 monthly for total disability arising from an automobile accident. Further, defendant alleged that plaintiff had an adequate remedy at law and moved to transfer the case from the Nonjury Calendar of Special Term to the calendar of a jury part of Trial Term. Special Term incorrectly denied its motion. As Special Term recognized, “[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever” (NY Const, art I, § 2), and this guarantee extends to all causes to which the right to jury trial attached at the time of the adoption of the 1894 Constitution (Matter of Luria, 63 Misc 2d 675 [Sobel, S.]; 4 Weinstein-Korn-Miller, NY Civ Prac, pars 4101.07, 4101.08). A plaintiff cannot, by artful pleading, deprive a defendant of his constitutionally guaranteed right to a jury trial by limiting his demand for relief to a declaration of his rights instead of seeking whatever coercive relief would be appropriate in enforcing the rights thus established (see L. C. J. Realty Corp. v Back, 37 AD2d 840 ; Utica Mut. Ins. Co. v Beers Chevrolet Co., 250 App Div 348 ; Matter of Allcity Ins. Co., 96 Misc 2d 864 ). Nor can he do so by characterizing a legal action as equitable (Vinlis Constr. Co. v Roreck, 23 AD2d 895 ; cf. Edwards, Inc. v Lax, 85 AD2d 509 ), or by making a purely equitable demand for relief upon facts constituting a legal cause (McCarthy & Co. v Hill, 295 NY 320 ; Barber v Farmers & Traders Life Ins. Co., 109 NYS2d 448 ). The general rule for complaints which state a single cause of action with a demand for equitable and legal relief is that the defendant is entitled to a jury trial if the issues for resolution are legal and that the defendant is not so entitled if the legal relief is sufficiently incidental to equitable relief such that, at common law, the Chancellor had jurisdiction over the entire matter (see Jamaica Sav. Bank v M. S. Investing Co.; 274 NY 215 ; City of Syracuse v Hogan, 234 NY 457 ; Carroll v Bullock, 207 NY 567 ; cf. Ramirez v Goldberg, 82 AD2d 850 ). Only if a plaintiff would have been required to bring an action in a law court and a separate suit in chancery would the defendant have been entitled to a jury trial on the law action (see 4 Weinstein-Korn-Miller, NY Civ Prac, pars 4101.36, 4101.37). Special Term properly noted that this court recently denied defendants a jury trial apparently by expansively defining what constitutes mere incidental legal relief in an action that sought not only the main relief of specific performance of sales agreements under which defendants were to pay plaintiff seller $1,350,000 in