Decana Inc. v. Contogouris

Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered April 6, 2007, which granted defendants-respondents mortgagees’ motion to strike plaintiffs’ jury demand, unanimously reversed, on the law, with costs, the motion denied, and the matter remanded for a jury trial.

Plaintiffs’ claims seeking rescission of defendants’ mortgages, although equitable in nature, are triable by jury (CPLR 4101 [2]; RPAPL 1501 [5]), absent a waiver. All the equitable relief sought by plaintiffs in addition to RPAPL article 15 rescission is incidental to the latter, and thus did not result in a…