Preview
FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------- ---X
PATRICIA ROMANO, :
: Index No. 507940/2016
Plaintiff, :
-against- :
:
SHIEL MEDICAL LABORATORY, INC. a/lda BIM :
MEDICAL, INC., SPECTRA LABORATORIES, INC., :
and JACK BASCH :
Defendants. :
_________..._----- ----_---_--_---..·--- -- X
MEMORANDUM OF LAW IN OPPOSITION TO MOTION
TO STRIKE JURY DEMAND AND IN SUPPORT OF CROSS-
MOTION TO RESETTLE PRIOR ORDER
Preliminary Statement
By email sent on October 26, 2018, counsel for Defendant Shiel Medical Laboratory, Inc. a/k/a
BIM Medical, Inc. ("Shiel") accepted the Court's suggestion that the trial in this action be scheduled for
March 21-28, 2019, with jury selection to be conducted on the preceding Monday and/or Tuesday; and
further advised the Court that "in the interim, we will be filing a motion with respect to the right to a jury
trial." A.1
Schñapp Aff. Exh. Three months later, with the scheduled date for selecting a jury fast
approaching, Defendant finally has gotten around to following through on its promise (or threat), filing a
motion that is so frivolous on its face that it suggests its primary purpose is to delay the start of the trial.
Plaintiff is confident that the Court will see through this strategy and will not only deny the motion, but
will do so promptly enough that no delay of the trial will result from its having been made.
Aff."
References
to the "Schnapp refer to the Affirmation of Elliot Schnapp, Esq., dated February 5, 2019,
in opposition to Defendant's Motion to strike the jury demand and in support of Plaintiff's cross-motion to resettle
the Court's Order entered September 27, 2018.
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PERTINENT BACKGROUND
Plaintiff's original complaint (Schnapp Aff. Exh B) contained four causes of action: breach of
contract (First Cause of Action), Quantum Meruit (Second), unjust enrichment (Third) and promissory
estoppel (Fourth). All four causes of action were based on the same facts, set forth in paragraphs 1-47 of
the Complaint, and all four causes of action sought identical relief, i.e., money damages in the amount of
$9,565,000 (Schnapp Aff. Exh. B, p. 13).
The allegations underlying the First Cause of Action were that the Defedants entered an oral
contract agreeing to pay Plaintiff a cash bonus upon the sale of Shiel's business equal to a percentage of
the sale price, and that they breached that contract by paying only part of that bonus while failing and
refusing to pay the balance of $9,565,000 that was due under the contract's terms. Each of the Second,
Third and Fourth Causes of action, in a single ad damnum clause (Schñapp AFf. Exh. B, p. 13), prayed in
the alternative and in the event judgment was not entered on the First Cause of Action for judgment in
precisely the same amount (i.e., $9,565,000). The Second Cause of Action was based on the theory that
$9,565,000 was the reasenable value of plaintiff s services (less what she already had been paid) (Schnapp
enriched"
Aff. Exh. B, ¶54); the Third Cause of Action alleged that the Defendants had "unjustly
themselves by failing to pay plaintiff that $9,565,000 (Schnapp Aff. Exh. B, $56); and the Fourth Cause of
Defendants'
Action alleged that plaintiff was damaged in that amount by her reliance on promises to her
to pay her the sale bonus (Schnapp Aff. Exh. B, 160).
On February 23, 2018, following the completion of discovery, Plaintiff filed a Note of Issue
(Schnapp Aff. Exh. C). The Note of Issue listed $9,565,000 as the amount demanded, requested no other
relief, and demanded a jury trial of all issues. Defendant's counsel now assert that as of the date the Note
"waived"
Issue was filed, Plaintiff already had what otherwise would have been her right to a jury even on
2
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"equitable"
the contract claim by pleadiñg non-contract claims that allegedly were in nature in the same
p.2.2
complaint as the breach of contract claim. Mem. Law However, Defendants kept this theory to
themselves for nearly a year, bringing it to the Court's attention only now when it has become academic
since the contract claim has been dismissed by the Court during the interim.
The contract claim, as the Court is aware, was dismissed as a result of Defendant's motion for
Defendants'
suñüñary judgment, filed on May 1, 2018. Schnapp Aff. ¶5. papers on that motion made no
"waived"
mention of their theory that Plaintiff had her right to a jury on all of her claims by joining
"equitable"
ostensibly claims with the contract claim. Nor did they request that the jury demand be
stricken in the event that only the contract claim were disñiissed (as indeed occurred) on the grounds that
"equitable."
all of the remaining claims would then be Instead of calling the Court's attention to the jury
issue in a single motion -- or even it promptly after the Court on October 2018
indeed, rasing notifying 26,
of their intention to do so -- Defendant has raised it as an afterthought at a time when they might
reasonably expect the proceedings on the motion to cause a delay of the long scheduled start of the trial.
Deféñdañts'
motion for summary judgment nominally sought dismissal of all four causes of
action. However most of Defendant's supporting Memorandum of Law was spent arguing that the
contract claim should be dismissed because Plaintiff's allegations that she had entered an oral contract
with the Defendants in March, 2007 for the payment of an acquisition bonus allegedly were
"irreconcilable"
with her subsequent participation in negotiations with the Defendants whose purpose was
to enter a written, integrated contract (as all parties agree, those subsequent negotiations were
1msuccessful). Moreover, when the motion was argued orally on September 26, 2018, the only subject
that the Court and the attorneys for the parties addressed was the breach of contract claim. Neither
Law"
2References to "Mem. refer to Defendant's Memorandum of Law in Support of their Motion to Strike
the jury demand herein.
3
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counsel nor the Court said a single word about the non-contract claims until after the Court announced
that it had decided to grant summary judgment dismissing the contract claim. Schnapp Aff. ¶¶5-6.
Only after the Court announced its ruling did the subject of the non-contract claims first come up.
Plaintiff's counsel briefly reminded the Court that those claims remained in the action and asked the
Court, in a single sentence, if its intention was to dismiss those claims as well. The Court immediately
answered that that was not its intention. Counsel for Defendants offered no argument opposing that result
and there was no further discussion of the issue. Schnapp Aff. 17.
This Court's Practice, of course, is to have the attorneys, at the conclusion of the oral argument,
draft an Order memorializing the Court's ruling. Accordingly, after the Court announced its ruling, the
attorneys left the courtroom and quickly drafted a brief order stating, in two short sentences, that the
breach of contract claim was dismissed, and that the quantum meruit and unjust enrichment claims were
not. As they wrote out the Order, neither Counsel said anything to the other on the subject of whether or
not the promissory estoppel claim was being dismissed; to put it bluntly, in their haste to draft an Order as
they stood in the hallway they simply overlooked that the document they were writing out said nothing
about that claim one way or the other. Indeed, to illustrate the hasty nature of the drafting process (as well
as of the fact that the contract claim had been the sole focus of the oral argument), as counsel were
Defendants'
discussing what to put in the Order, counsel realized that he had forgotten to argue the branch
of his motion that sought dismissal of all claims against Jack Basch in his individual capacity. Counsel
thereupon returned to the Courtroom to raise that issue with the Court, which then granted that aspect of
Defendants'
motion. Despite this second opportunity at oral argument, Defendant's counsel still failed to
suggest that he was continuing to press for the dismissal of the promissory estoppel claim, as he surely
would have if he had believed the Court intended that result. Schnapp Aff. ¶¶7-11.
4
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ARGUMENT
POINT I
UNDER THE UNAMBIGUOUS LANGUAGE
OF THE GOVERNING STATUTE AND THE
UNANIMOUS CASE LAW, PLAINTIFF IS ENTITLED
TO A JURY TRIAL ON HER NON-CONTRACT CLAIMS
Demonstrating just how frivolous their motion is, Counsel have not even mentioned the CPLR
section that explicitly governs the right to a jury trial, much less explain why they think it ought not to
here. That statute - CPLR §4101 - provides in pertinent part as follows:
apply
§4101. Issues triable by a jury revealed before trial
In the following actions, the issues of fact shall be tried by a jury unless a jury trial is
waived or a reference is directed under section 4317 . . .:
1. an action in which the party demands and sets forth facts which would permit a
judgment for a sum of money only. . .
Lest there be any question that the statute contains any ambiguity, Professor Siegel, in his Practice
Commentary, confirmed that it means exactly what it says:
As a general a jury trial is available in the law actions - those evolved from the
rule,
common law - as opposed to those evolved in which continue to be triable
chancery (equity), by
the court. The most common law action is of course the simply money action, specified in
paragraph 1 of CPLR 4101. Issues of fact on causes of action for money only, whether sounding
in tort, contract, or anything else, are triable by jury. (emphasis supplied).
filed3
Here, of course, the Complaint peding on the date plaintiff's jury demand was not only
only"
"demand[ed] . . . a judgment for a sum of money and "sets forth facts which would permit a
judgment for the sum of money only"; it did not demand anything even remotely resembling an equitable
3Following the Court's decision on the motion for summary judgment dismissing the contract claim,
plaintiff filed an e=ended complaint pleading only the quantum meruit, unjust enrichment and promissory estoppel
claims. The facts on which those claims were based (with minor revisions resulting from facts revealed during
discovery) were essentially unchâñged from the original complaint. Most importantly for the purpose of the current
motion, the ad trm:= clause continues to seek one and only one remedy: a money judgñicñt for $9,565,000.
5
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remedy, and did not set forth a single fact (e.g., irreparable harm, etc.) that could even remotely be deemed
"permit"
something that would an award of any equitable relief. The instant action manifestly fits within
the explicit mandate of CPLR §4101, not to mention the constitutional guarantees which it enforces.
Rather than address the controlling statute head on, Defendants rely on dictum from a single
Second Department case which, upon analysis, demonstrates precisely why the non-contract claims here
must be tried to a jury. Contrary to the impression that Defendants seek to give (Mem. Law p. 4), the
Second Department, in Magill v. Dutchess Bank & Tr. Co., 150 A.D.2d 531, 541 N.Y.S.2d 437 (1989),
did not suggest, much less hold, that a court should simply disregard the prayer for relief in determining
whether a claim is triable by a jury, but simply held that plaintiffs cannot obscure the equitable nature of
the relief they are actually entitled to merely by calling it a money judgment.
The plaintiffs in Magill were trust beneficiaries who alleged that the trust had been darsaged by the
trustee's negligent performance of his duties. The plaintiffs thus were suing derivatively. The only
remedy they accordingly would have been entitled to was a judgment directing the trustee to restore assets
to the trust -- a quintessential equitable -- and on the facts as they alleged themselves
remedy them, they
would not be entitled to a money judgmeñt in their favor. In repeating the unexceptionable rule that a
necessarily"
demand for a money judgment "does not entitle a plaintiff to a jury trial if, in actuality, the
only,"
facts pleaded in the complaint would not "permit a judgment for the sum of money the Court in
Magill simply re-affirmed that if on the facts as pleaded the plaintiffs would be entitled to an equitable
remedy, they could not secure a jury trial merely by asking the Court to award them a money judgment.
The Court in Magill thus re-affirmed that both requirerseats of CPLR -- that the
simply §4101(1) i.e.,
demands judgmeñt for and that the facts pleaded would permit such an award -- need to
party money only
be met. The Court moreover was careful to add that the plaintiffs would have been entitled to a jury if
6
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they had alleged facts showing that "the trustee is under a duty to pay money immediately and
[them]."
unconditionally to E, 150 A.D.2d at 531-532, 541 N.Y.S.2d 437.
A plaintiff's entitlement to a jury thus does not depend solely on the relief he asks for, but on the
relief that would be dictated by the pleaded facts. Murphy v. American Home Products Corp., 136
A.D.2d 229, 232, 527 N.Y.S.2d 1, 3 (1st Dept. 1988)("If, in fact, a sum of money alone can provide full
relief to the plaintiff under the facts alleged, then there is a right to a jury trial."). Thus even where the
complaint explicitly asks for equitable relief, if the facts pleaded show that "monetary damages alone will
relief,"
afford full the plaintiff retains the right to a jury on his claim for money damages notwithstanding
nature."
that he erroneously added "a prayer for relief . . . which is partially equitable in Hebranko v.
Bioline Laboratories, Inc., 149 A.D.2d 567, 540 N.Y.S.2d 264 (2d Dept. 1989).
In the instant case there of no doubt -- and indeed Defendants have not purported to
is, course,
dispute -- that if Plaintiff prevails on her claims she will be entitled to a money that a money
judgment;
judgment will provide a full and complete remedy based on the facts alleged; and that she has not prayed
for, and on the facts alleged would not be entitled to, any relief that even remotely could be characterized
"equitable."
as The manner in which the theories underlying plaintiff's non-contract claims may have
been characterized in the English courts of the 17th century is completely irrelevant to the current motion.
While not necessary to this Court's decision, given the clear import of the governing statute, the
case law further confirms that regardless of how causes of action in quantum meruit, for unjust enrichment
and for promissory estoppel may have evolved historically, in 21st century America they all are deemed
actions at law for which a jury is required. In Hudson View II Associates v. Gooden, 222 A.D.2d 163,
168, 644 N.Y.S.2d 512, 516 (1st Sept. 1996), the Court explicitly held that a q1mnium meruit claim must
be tried to a jury, as follows:
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In this case, it is not entirely clear . . . whether the damages sought . . . are claimed pursuant
to provisions of the contracts . . . or whether defendants are these amounts under the quasi-
seeking
contractual theory of quantum meruit. However, under either theory, these counterclaims would
be categorized as "legal", rather than "equitable", and their assertion would not deprive defendants
of their right to a jury trial. . . these causes of action, which still seek only money damages, are
law.4
quasi-contractual in nature and would, therefore, also have been actions at
Similarly, in Darmsteadter v. Tandberg of America, 104 A.D.2d 355, 479 N.Y.S.2d 151 (1984),
the Second Department explicitly upheld the right to a jury on unjust enrichment claims. :
. . . the co
Preview
FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------- ---X PATRICIA ROMANO, : : Index No. 507940/2016 Plaintiff, : -against- : : SHIEL MEDICAL LABORATORY, INC. a/lda BIM : MEDICAL, INC., SPECTRA LABORATORIES, INC., : and JACK BASCH : Defendants. : _________..._----- ----_---_--_---..·--- -- X MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO STRIKE JURY DEMAND AND IN SUPPORT OF CROSS- MOTION TO RESETTLE PRIOR ORDER Preliminary Statement By email sent on October 26, 2018, counsel for Defendant Shiel Medical Laboratory, Inc. a/k/a BIM Medical, Inc. ("Shiel") accepted the Court's suggestion that the trial in this action be scheduled for March 21-28, 2019, with jury selection to be conducted on the preceding Monday and/or Tuesday; and further advised the Court that "in the interim, we will be filing a motion with respect to the right to a jury trial." A.1 Schñapp Aff. Exh. Three months later, with the scheduled date for selecting a jury fast approaching, Defendant finally has gotten around to following through on its promise (or threat), filing a motion that is so frivolous on its face that it suggests its primary purpose is to delay the start of the trial. Plaintiff is confident that the Court will see through this strategy and will not only deny the motion, but will do so promptly enough that no delay of the trial will result from its having been made. Aff." References to the "Schnapp refer to the Affirmation of Elliot Schnapp, Esq., dated February 5, 2019, in opposition to Defendant's Motion to strike the jury demand and in support of Plaintiff's cross-motion to resettle the Court's Order entered September 27, 2018. 1 of 11 FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019 PERTINENT BACKGROUND Plaintiff's original complaint (Schnapp Aff. Exh B) contained four causes of action: breach of contract (First Cause of Action), Quantum Meruit (Second), unjust enrichment (Third) and promissory estoppel (Fourth). All four causes of action were based on the same facts, set forth in paragraphs 1-47 of the Complaint, and all four causes of action sought identical relief, i.e., money damages in the amount of $9,565,000 (Schnapp Aff. Exh. B, p. 13). The allegations underlying the First Cause of Action were that the Defedants entered an oral contract agreeing to pay Plaintiff a cash bonus upon the sale of Shiel's business equal to a percentage of the sale price, and that they breached that contract by paying only part of that bonus while failing and refusing to pay the balance of $9,565,000 that was due under the contract's terms. Each of the Second, Third and Fourth Causes of action, in a single ad damnum clause (Schñapp AFf. Exh. B, p. 13), prayed in the alternative and in the event judgment was not entered on the First Cause of Action for judgment in precisely the same amount (i.e., $9,565,000). The Second Cause of Action was based on the theory that $9,565,000 was the reasenable value of plaintiff s services (less what she already had been paid) (Schnapp enriched" Aff. Exh. B, ¶54); the Third Cause of Action alleged that the Defendants had "unjustly themselves by failing to pay plaintiff that $9,565,000 (Schnapp Aff. Exh. B, $56); and the Fourth Cause of Defendants' Action alleged that plaintiff was damaged in that amount by her reliance on promises to her to pay her the sale bonus (Schnapp Aff. Exh. B, 160). On February 23, 2018, following the completion of discovery, Plaintiff filed a Note of Issue (Schnapp Aff. Exh. C). The Note of Issue listed $9,565,000 as the amount demanded, requested no other relief, and demanded a jury trial of all issues. Defendant's counsel now assert that as of the date the Note "waived" Issue was filed, Plaintiff already had what otherwise would have been her right to a jury even on 2 2 of 11 FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019 "equitable" the contract claim by pleadiñg non-contract claims that allegedly were in nature in the same p.2.2 complaint as the breach of contract claim. Mem. Law However, Defendants kept this theory to themselves for nearly a year, bringing it to the Court's attention only now when it has become academic since the contract claim has been dismissed by the Court during the interim. The contract claim, as the Court is aware, was dismissed as a result of Defendant's motion for Defendants' suñüñary judgment, filed on May 1, 2018. Schnapp Aff. ¶5. papers on that motion made no "waived" mention of their theory that Plaintiff had her right to a jury on all of her claims by joining "equitable" ostensibly claims with the contract claim. Nor did they request that the jury demand be stricken in the event that only the contract claim were disñiissed (as indeed occurred) on the grounds that "equitable." all of the remaining claims would then be Instead of calling the Court's attention to the jury issue in a single motion -- or even it promptly after the Court on October 2018 indeed, rasing notifying 26, of their intention to do so -- Defendant has raised it as an afterthought at a time when they might reasonably expect the proceedings on the motion to cause a delay of the long scheduled start of the trial. Deféñdañts' motion for summary judgment nominally sought dismissal of all four causes of action. However most of Defendant's supporting Memorandum of Law was spent arguing that the contract claim should be dismissed because Plaintiff's allegations that she had entered an oral contract with the Defendants in March, 2007 for the payment of an acquisition bonus allegedly were "irreconcilable" with her subsequent participation in negotiations with the Defendants whose purpose was to enter a written, integrated contract (as all parties agree, those subsequent negotiations were 1msuccessful). Moreover, when the motion was argued orally on September 26, 2018, the only subject that the Court and the attorneys for the parties addressed was the breach of contract claim. Neither Law" 2References to "Mem. refer to Defendant's Memorandum of Law in Support of their Motion to Strike the jury demand herein. 3 3 of 11 FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019 counsel nor the Court said a single word about the non-contract claims until after the Court announced that it had decided to grant summary judgment dismissing the contract claim. Schnapp Aff. ¶¶5-6. Only after the Court announced its ruling did the subject of the non-contract claims first come up. Plaintiff's counsel briefly reminded the Court that those claims remained in the action and asked the Court, in a single sentence, if its intention was to dismiss those claims as well. The Court immediately answered that that was not its intention. Counsel for Defendants offered no argument opposing that result and there was no further discussion of the issue. Schnapp Aff. 17. This Court's Practice, of course, is to have the attorneys, at the conclusion of the oral argument, draft an Order memorializing the Court's ruling. Accordingly, after the Court announced its ruling, the attorneys left the courtroom and quickly drafted a brief order stating, in two short sentences, that the breach of contract claim was dismissed, and that the quantum meruit and unjust enrichment claims were not. As they wrote out the Order, neither Counsel said anything to the other on the subject of whether or not the promissory estoppel claim was being dismissed; to put it bluntly, in their haste to draft an Order as they stood in the hallway they simply overlooked that the document they were writing out said nothing about that claim one way or the other. Indeed, to illustrate the hasty nature of the drafting process (as well as of the fact that the contract claim had been the sole focus of the oral argument), as counsel were Defendants' discussing what to put in the Order, counsel realized that he had forgotten to argue the branch of his motion that sought dismissal of all claims against Jack Basch in his individual capacity. Counsel thereupon returned to the Courtroom to raise that issue with the Court, which then granted that aspect of Defendants' motion. Despite this second opportunity at oral argument, Defendant's counsel still failed to suggest that he was continuing to press for the dismissal of the promissory estoppel claim, as he surely would have if he had believed the Court intended that result. Schnapp Aff. ¶¶7-11. 4 4 of 11 FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019 ARGUMENT POINT I UNDER THE UNAMBIGUOUS LANGUAGE OF THE GOVERNING STATUTE AND THE UNANIMOUS CASE LAW, PLAINTIFF IS ENTITLED TO A JURY TRIAL ON HER NON-CONTRACT CLAIMS Demonstrating just how frivolous their motion is, Counsel have not even mentioned the CPLR section that explicitly governs the right to a jury trial, much less explain why they think it ought not to here. That statute - CPLR §4101 - provides in pertinent part as follows: apply §4101. Issues triable by a jury revealed before trial In the following actions, the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is directed under section 4317 . . .: 1. an action in which the party demands and sets forth facts which would permit a judgment for a sum of money only. . . Lest there be any question that the statute contains any ambiguity, Professor Siegel, in his Practice Commentary, confirmed that it means exactly what it says: As a general a jury trial is available in the law actions - those evolved from the rule, common law - as opposed to those evolved in which continue to be triable chancery (equity), by the court. The most common law action is of course the simply money action, specified in paragraph 1 of CPLR 4101. Issues of fact on causes of action for money only, whether sounding in tort, contract, or anything else, are triable by jury. (emphasis supplied). filed3 Here, of course, the Complaint peding on the date plaintiff's jury demand was not only only" "demand[ed] . . . a judgment for a sum of money and "sets forth facts which would permit a judgment for the sum of money only"; it did not demand anything even remotely resembling an equitable 3Following the Court's decision on the motion for summary judgment dismissing the contract claim, plaintiff filed an e=ended complaint pleading only the quantum meruit, unjust enrichment and promissory estoppel claims. The facts on which those claims were based (with minor revisions resulting from facts revealed during discovery) were essentially unchâñged from the original complaint. Most importantly for the purpose of the current motion, the ad trm:= clause continues to seek one and only one remedy: a money judgñicñt for $9,565,000. 5 5 of 11 FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019 remedy, and did not set forth a single fact (e.g., irreparable harm, etc.) that could even remotely be deemed "permit" something that would an award of any equitable relief. The instant action manifestly fits within the explicit mandate of CPLR §4101, not to mention the constitutional guarantees which it enforces. Rather than address the controlling statute head on, Defendants rely on dictum from a single Second Department case which, upon analysis, demonstrates precisely why the non-contract claims here must be tried to a jury. Contrary to the impression that Defendants seek to give (Mem. Law p. 4), the Second Department, in Magill v. Dutchess Bank & Tr. Co., 150 A.D.2d 531, 541 N.Y.S.2d 437 (1989), did not suggest, much less hold, that a court should simply disregard the prayer for relief in determining whether a claim is triable by a jury, but simply held that plaintiffs cannot obscure the equitable nature of the relief they are actually entitled to merely by calling it a money judgment. The plaintiffs in Magill were trust beneficiaries who alleged that the trust had been darsaged by the trustee's negligent performance of his duties. The plaintiffs thus were suing derivatively. The only remedy they accordingly would have been entitled to was a judgment directing the trustee to restore assets to the trust -- a quintessential equitable -- and on the facts as they alleged themselves remedy them, they would not be entitled to a money judgmeñt in their favor. In repeating the unexceptionable rule that a necessarily" demand for a money judgment "does not entitle a plaintiff to a jury trial if, in actuality, the only," facts pleaded in the complaint would not "permit a judgment for the sum of money the Court in Magill simply re-affirmed that if on the facts as pleaded the plaintiffs would be entitled to an equitable remedy, they could not secure a jury trial merely by asking the Court to award them a money judgment. The Court in Magill thus re-affirmed that both requirerseats of CPLR -- that the simply §4101(1) i.e., demands judgmeñt for and that the facts pleaded would permit such an award -- need to party money only be met. The Court moreover was careful to add that the plaintiffs would have been entitled to a jury if 6 6 of 11 FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019 they had alleged facts showing that "the trustee is under a duty to pay money immediately and [them]." unconditionally to E, 150 A.D.2d at 531-532, 541 N.Y.S.2d 437. A plaintiff's entitlement to a jury thus does not depend solely on the relief he asks for, but on the relief that would be dictated by the pleaded facts. Murphy v. American Home Products Corp., 136 A.D.2d 229, 232, 527 N.Y.S.2d 1, 3 (1st Dept. 1988)("If, in fact, a sum of money alone can provide full relief to the plaintiff under the facts alleged, then there is a right to a jury trial."). Thus even where the complaint explicitly asks for equitable relief, if the facts pleaded show that "monetary damages alone will relief," afford full the plaintiff retains the right to a jury on his claim for money damages notwithstanding nature." that he erroneously added "a prayer for relief . . . which is partially equitable in Hebranko v. Bioline Laboratories, Inc., 149 A.D.2d 567, 540 N.Y.S.2d 264 (2d Dept. 1989). In the instant case there of no doubt -- and indeed Defendants have not purported to is, course, dispute -- that if Plaintiff prevails on her claims she will be entitled to a money that a money judgment; judgment will provide a full and complete remedy based on the facts alleged; and that she has not prayed for, and on the facts alleged would not be entitled to, any relief that even remotely could be characterized "equitable." as The manner in which the theories underlying plaintiff's non-contract claims may have been characterized in the English courts of the 17th century is completely irrelevant to the current motion. While not necessary to this Court's decision, given the clear import of the governing statute, the case law further confirms that regardless of how causes of action in quantum meruit, for unjust enrichment and for promissory estoppel may have evolved historically, in 21st century America they all are deemed actions at law for which a jury is required. In Hudson View II Associates v. Gooden, 222 A.D.2d 163, 168, 644 N.Y.S.2d 512, 516 (1st Sept. 1996), the Court explicitly held that a q1mnium meruit claim must be tried to a jury, as follows: 7 7 of 11 FILED: KINGS COUNTY CLERK 02/05/2019 03:09 PM INDEX NO. 507940/2016 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 02/05/2019 In this case, it is not entirely clear . . . whether the damages sought . . . are claimed pursuant to provisions of the contracts . . . or whether defendants are these amounts under the quasi- seeking contractual theory of quantum meruit. However, under either theory, these counterclaims would be categorized as "legal", rather than "equitable", and their assertion would not deprive defendants of their right to a jury trial. . . these causes of action, which still seek only money damages, are law.4 quasi-contractual in nature and would, therefore, also have been actions at Similarly, in Darmsteadter v. Tandberg of America, 104 A.D.2d 355, 479 N.Y.S.2d 151 (1984), the Second Department explicitly upheld the right to a jury on unjust enrichment claims. : . . . the co