On May 28, 2026, the First Department issued a decision in James Thomas Realty, LLC v. Cheliotes, 2026 NY Slip Op. 03362, holding that because a derivative claim is an equitable claim, there is no right to a jury trial even though the plaintiff is seeking money damages, explaining:
Supreme Court properly granted defendants’ motion to strike plaintiff’s demand for a jury trial. CPLR 4101(1) provides the right to a jury trial in actions for legal relief in which a party demands and sets forth facts which would permit a judgment for a sum of money only. It is well settled that a party is not entitled to a jury trial where its action is primarily equitable in nature. To determine whether a party is entitled to a jury trial, courts ask whether, when viewed in its entirety, the primary character of the case is legal or equitable.
Here, Supreme Court correctly determined that this is an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only. Plaintiff seeks money damages on behalf of the condominium association in the amount that defendants allegedly caused the association to pay in excess of the amount it actually owed on a loan given by one of the fund defendants. Moreover, plaintiff’s claim for an accounting is merely a method to determine the amount of the monetary damages and therefore incidental to its claims sounding in law for money damages. However, because the claims brought by plaintiff in its capacity as a shareholder are derivative, the primary character of the case is equitable in nature and plaintiff is not entitled to a jury trial.
Plaintiff argues that our court should follow the Supreme Court’s decision in Ross v Bernhard (396 US 531 [1970]), which held that a plaintiff in a derivative action which seeks money damages is entitled to a jury trial under the Seventh Amendment. Ross’s holding is not binding on us because the contours of the federal guarantee differ from the protections afforded the right to a jury trial in civil cases in this State, and the Seventh Amendment is not applicable to cases tried in state courts. To the extent that our decisions in Rocha Toussier y Asociados v Rodrigo Rocha Rivero (201 AD2d 282 [1st Dept 1994]) and Abrams v Rogers (195 AD2d 349 [1st Dept 1993]) reached a different conclusion, they predate our decision in Marko.
(Internal quotations and citations omitted).