

Burns v Burns (2017 NY Slip Op 01841)





Burns v Burns


2017 NY Slip Op 01841


Decided on March 15, 2017


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 15, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

JOHN M. LEVENTHAL, J.P.
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX
FRANCESCA E. CONNOLLY, JJ.


2016-11754
 (Index No. 37327/07)

[*1]Louis Burns, respondent, 
vStephanie Burns, appellant, et al., defendants.


Domenick Napoletano, Brooklyn, NY, for appellant.
Reingold & Tucker, Brooklyn, NY (Abraham Reingold of counsel), for respondent.

DECISION & ORDER
Appeal from an order of the Supreme Court, Kings County (Kenneth P. Sherman, J.), dated October 18, 2016. The order denied the motion of the defendant Stephanie Burns to strike the plaintiff's jury demand.
ORDERED that the order is affirmed, with costs.
"A jury trial is guaranteed in an action  for determination of a claim to real property under [RPAPL article 15]'" (Paciello v Graffeo, 8 AD3d 543, 543, quoting CPLR 4101[2]). Although the plaintiff did not characterize or refer to his causes of action to recover possession of real property as claims pursuant to RPAPL article 15, he was nevertheless entitled to a jury trial on those causes of action (see Paciello v Graffeo, 8 AD3d 543; see also Howard v Murray, 38 NY2d 695, 699-700). Moreover, regardless of whether the plaintiff's causes of action to recover the subject properties are equitable in nature, he is statutorily entitled to a jury trial on those causes of action (see City of Syracuse v Hogan, 234 NY 457, 462) and, thus, he did not waive his right to a jury trial by joining legal and equitable claims (see Paciello v Graffeo, 8 AD3d at 543). Accordingly, the Supreme Court properly denied the defendant Stephanie Burns' motion to strike the plaintiff's jury demand.
LEVENTHAL, J.P., COHEN, HINDS-RADIX and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


