JIHL Associates v. Frank
| Decision Date | 14 January 1985 |
| Citation | 484 N.Y.S.2d 29,107 A.D.2d 662 |
| Parties | JIHL ASSOCIATES, Respondent, v. Seymour B. FRANK, et al., Defendants Third-Party Plaintiffs-Appellants, National General Corporation, et al., Third-Party Defendants-Appellants, et al., Third-Party Defendants. |
| Court | New York Supreme Court — Appellate Division |
Jacobson & Goldberg, Garden City (Richard E. Schrier, Garden City, of counsel, William E.M. Gottfried, Garden City, on the brief), for defendants third-party plaintiffs-appellants.
Joseph F. Carlino, P.C., Mineola (Arlen K. Bostad and Julian Jawitz, Mineola, of counsel), for third-party defendants-appellants.
Reisman, Peirez & Reisman, Garden City (David H. Peirez and Robert M. Calica, Garden City, of counsel), for respondent.
Before BROWN, J.P., and NIEHOFF, RUBIN and EIBER, JJ.
MEMORANDUM BY THE COURT.
In an action by a lessor to, inter alia, recover damages for alleged breaches of leases, the defendants third-party plaintiffs and the third-party defendants National General Corporation, Fox Eastern Theatres Corporation, Mann Theatres Corporation of California, National General Theatres, Inc., Fox Midwest Theatres, Inc. and Fox Inter-Mountain Theatres, Inc. (hereinafter third-party defendants), appeal from an order of the Supreme Court, Nassau County, dated September 13, 1983, which granted plaintiff's motion to strike the defendants third-party plaintiffs' demand for a jury trial and transferred the case from the trial calendar of a jury part to that of a nonjury part.
Order modified by adding thereto a provision severing so much of the plaintiff's third and sixth causes of action as seek to recover damages against the individual defendants Seymour B. Frank and Sidney Sinetar, and directing that said portions of those causes of action be tried separately before a jury. As so modified, order affirmed, without costs or disbursements.
Said provision was allegedly incorporated by reference into subleases and subsequent assignments of the subleases.
Defendants and third-party defendants contend that the jury waiver provisions are void under section 259-c of the Real Property Law.
Section 259-c invalidates such a jury waiver provision in "any action for personal injury or property damage". That provision is not applicable to an action to recover damages arising out of a breach of the contractual provisions of the lease because the words "personal injury or property damage" traditionally refer to "tort actions arising out of a liability imposed by law for negligence, or even a willful tort, but not out of a contract" ...
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