Poley v. Rochester Community Sav. Bank

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before CALLAHAN
• Citation: Poley v. Rochester Community Sav. Bank, 584 N.Y.S.2d 690, 184 A.D.2d 1027 (N.Y. App. Div. 1992)
• Decision Date: 05 June 1992
• Parties: Timothy H. POLEY, John M. Lacagnina, the BPlan, Inc., and the BPlan, Inc. Liquidating Trust, Respondents, v. The ROCHESTER COMMUNITY SAVINGS BANK, the RCSB Planning Holding Company, Inc., APlan Holding Company, Inc., Richard W. Warshof, Individually and as Chairman of the Board of APlan Holding Company, Inc., Leonard D. Simon, Individually and as Chairman of the Board and Chief Executive Officer of the Rochester Community Savings Bank, Appellants.

Page 690

584 N.Y.S.2d 690

184 A.D.2d 1027

Timothy H. POLEY, John M. Lacagnina, the BPlan, Inc., and the BPlan, Inc. Liquidating Trust, Respondents, v. The ROCHESTER COMMUNITY SAVINGS BANK, the RCSB Planning Holding Company, Inc., APlan Holding Company, Inc., Richard W. Warshof, Individually and as Chairman of the Board of APlan Holding Company, Inc., Leonard D. Simon, Individually and as Chairman of the Board and Chief Executive Officer of the Rochester Community Savings Bank, Appellants.

Supreme Court, Appellate Division Fourth Department.

June 5, 1992.

Harris, Beach & Wilcox by Paul Yesawich, III, Rochester, for appellants.

Jaeckle, Fleischmann & Mugel by Earl Cantwell, Buffalo, for respondents.

Before CALLAHAN, J.P., and BOOMER, BALIO, LAWTON and DOERR, JJ.

MEMORANDUM:

Supreme Court properly determined that plaintiffs did not waive their right to a jury trial by requesting injunctive relief in the original or amended complaint. The original complaint contained seven causes of action for money damages arising out of an alleged wrongful termination of an employment contract. Although plaintiffs requested temporary injunctive relief pending resolution of the lawsuit, that request was incidental to a demand for money damages, and the essence of the dispute was the wrongful termination. Under the circumstances, the assertion of a claim for temporary relief did not constitute a waiver of the right to a jury trial (see, Hebranko v. Bioline Labs., 149 A.D.2d 567, 540 N.Y.S.2d 264; Cowper Co. v. Buffalo Hotel Dev. Venture, 99 A.D.2d 19, 471 N.Y.S.2d 913; see also, Dairy Queen v. Wood, 369 U.S. 469, 477-478, 82 S.Ct. 894, 899-900, 8 L.Ed.2d 44).

We reach the same conclusion...