Trap for the Unwary: How Pleadings and Collateral Contracts Can Unintentionally Forfeit the Right to a Jury Trial

How Pleading Injunctive or Declaratory Relief Forfeits the Right to a Jury Trial in New York

Imagine you’re drafting a complaint or answer in a high-stakes New York commercial action seeking damages for breach of contract, but you also add a claim for a permanent injunction or a declaration of rights. Without realizing it, you have just handed the judge – not a jury – the power to decide your entire case. New York’s approach to the right to a jury trial in civil litigation contains a subtle but consequential trap for the unwary litigator. By including claims for injunctive or declaratory relief, even alongside otherwise legal claims for damages, counsel may inadvertently waive the right to a jury trial.

The Legal Framework: CPLR 4101 and the Waiver Doctrine

The right to a jury trial in New York civil actions is governed by CPLR 4101, which provides that “issues of fact shall be tried by a jury unless a jury trial is waived  . . . except that equitable defenses and equitable counterclaims shall be tried by the court.” Unlike federal practice, which often preserves the jury right for legal claims even when joined with equitable claims, New York courts focus on the “primary character” of the action as revealed by the pleadings.[1] If a party seeks both legal and equitable relief arising from the same alleged wrong, the action is generally considered equitable, and the right to a jury trial is lost unless equitable relief is deemed “incidental to [the] demand for money damages.”[2]

New York courts have consistently held that the deliberate joinder of legal and equitable claims, or the request for both legal and equitable relief, constitutes a waiver of the right to a jury trial. In Pelletier v. Morgan, the court reaffirmed that “when the complaint either joins legal and equitable causes of action arising out of the same alleged wrong or seeks both legal and equitable relief, there is a waiver of a plaintiff’s right to a jury trial.”[3] In Fakiris v. Gusmar Enterprises, LLC, the court held that the deliberate joinder of claims for legal and equitable relief – specifically, claims for an accounting and removal of a managing member – amounted to a waiver, regardless of the presence of legal claims.[4] Zimmer-Masiello, Inc. v. Zimmer, Inc. further clarified that once the right to a jury trial is lost by the inclusion of equitable claims, it cannot be revived by later withdrawing those claims.[5]

The waiver is not merely technical. Once the right to a jury trial is lost by the inclusion of equitable claims, it cannot be revived by later amending the pleadings to withdraw those claims. As explained in Zimmer-Masiello, “any subsequent dismissal, settlement or withdrawal of the equitable claim[s] will not revive the right to trial by jury.”[6]

Recent Example: Darwish Auto Group, LLC et al. v. TD Bank, N.A. et al.

The June decision in Darwish exemplifies the operation of this doctrine.[7] In this recent litigation in the Commercial Division of the Supreme Court of the State of New York, County of Albany, the individual defendant asserted counterclaims and third-party claims seeking a range of equitable remedies. The defendant’s causes of action included declaratory judgments regarding corporate governance and the conduct of the companies’ management, an accounting of company finances, and permanent injunctive relief to restrain alleged wrongful conduct by the third-party defendants.[8] The court found that these equitable claims, especially when combined with derivative allegations, rendered the action primarily equitable. The court then struck the defendant’s jury demand, holding that the right to a jury trial had been waived by the nature of the pleadings.

Practical Implications and Drafting Considerations

For practitioners, the consequences of pleading into equity are profound. Even a single, well-intentioned request for injunctive or declaratory relief can erase the right to a jury trial for the entire action. This waiver is not limited to plaintiffs; defendants who assert equitable counterclaims or defenses may similarly forfeit the jury right. Practitioners must therefore exercise great care in drafting pleadings and in evaluating the necessity and scope of equitable relief, particularly where the right to a jury trial may be strategically significant.

Waiving the Right to a Jury Trial Through Agreement Under New York Law

Pleading injunctive or declaratory relief is not the only pitfall a practitioner can encounter. The contractual waiver of a jury trial – a seemingly proactive method of controlling certain aspects of litigation – is another procedural nuance that can make or break the outcome of your case as these waivers vary in their power. For instance, what happens if the waiver is written into an agreement that is tangential, but not central, to your issue? What claims are covered by the jury waiver provision? Do all jurisdictions enforce them equally? Without understanding these nuances, practitioners risk inadvertently waiving the right to a jury trial for a broad range of claims by agreeing to waivers in collateral contracts, or, conversely, may assert these claims without realizing they have already been contractually precluded.

Jurisdiction Differences

Jurisdictions differ on whether contractual jury trial waivers are enforceable. In Grafton Partners L.P. v. Superior Court,[9] the California Supreme Court ruled that pre-dispute contractual waivers of jury trials are unenforceable unless a statute expressly permits them. In that case, the parties’ engagement letter included a mutual jury trial waiver. When a dispute arose, the plaintiffs requested a jury trial, and the defendants sought to enforce the waiver. The trial court upheld the waiver, but the Court of Appeal and California Supreme Court reversed, finding the waiver unenforceable as the California Constitution guarantees the right to a jury in civil cases. Unless the right is waived by statute or the lawsuit is already pending, the right to a jury trial cannot be waived proactively.[10]

However, California is a bit of an outlier, as the majority approach is to enforce contractual jury waivers. Notably, other jurisdictions such as New York and Massachusetts have adopted an even more expansive view than the majority, upholding jury waiver provisions present in contracts that are merely collateral to the dispute, even where the claim does not arise directly from the contract containing the waiver.[11] In Tiffany At Westbury Condominium v. Marelli Dev. Corp.,[12] the Second Department applied a jury waiver provision present in a purchase agreement to all claims in a suit – breach of contract, breach of warranty, and breach of fiduciary duty – reasoning that all claims arose from the same transactions governed by the purchase agreement. Similarly in Barclays Bank of N.Y. v. Heady Elec. Co.,[13] the defendant’s 11 counterclaims, which included intentional torts, were all bound by the jury waiver provisions found in two personal guarantee agreements, as defendant’s claims were based on the plaintiff’s violations of those agreements.[14]

A Recent Case Demonstrating This Procedural Trap

The Darwish case,[15] also mentioned above, is a pivotal example of this nuance, demonstrating how a provision present in a tangential contract may be invoked to preclude a jury trial across a variety of claims, not only breach of contract. Plaintiffs brought three claims: a judicial declaration concerning governance of the companies, breach of fiduciary duty, and breach of the governance agreements. In response, the individual defendant asserted 10 counterclaims and third-party claims, which included fraud, conversion, unjust enrichment, and tortious interference. The defendant also filed a demand for a jury trial.

In addition to concluding that the defendant had waived the right to a jury trial by asserting equitable claims, the trial court held that the defendant had also contractually waived the right to trial by jury. The court determined that all claims and counterclaims asserted by both plaintiffs and the defendant “arise out of or relate to the Governance Agreements” which contained jury waiver provisions, applying the waiver to all claims including those beyond breach of contract.[16] As a result, all 10 of the defendant’s counterclaims, which consisted of primarily tort claims and did not allege breach of contract, were precluded from a jury trial by the presence of a jury waiver provision in a collateral contractual provision. While the defendant attempted to claim a bargaining power disparity and failure to review documents prior to execution, the court held that these claims were insufficient to deny enforcement of the waiver, especially given that the defendant was represented by sophisticated counsel.

Navigating Jury Waiver Provisions in Practice

Lawyers frequently seek to control future litigation through seemingly proactive procedural measures such as waiver of the righ­­t to ­­a jury trial. But it’s not always that simple. These measures have nuances and disparities between jurisdictions that create loopholes and trapdoors to these provisions. Practitioners may not realize that they have inadvertently waived the availability of a jury on a wide range of claims beyond breach of contract. Or, possibly, the jurisdiction in which the agreement was signed does not consider pre-dispute jury trial waivers to be enforceable under their state’s constitution. Even sophisticated attorneys can inadvertently waive these fundamental rights, so careful review of all contracts tangential to your claims, even claims beyond breach of contract, is crucial. On the other side, if opposing counsel is demanding a jury trial, there may be relevant, collateral agreements related to your issue that can preclude their right to a jury trial. These procedural nuances can work to your favor once you are aware of their intricacies and learn how to navigate them to your advantage.

Takeaways

The right to a jury trial in New York civil litigation is surrounded by procedural pitfalls that can trap even experienced practitioners. Parties may unintentionally forfeit this right by including equitable or declaratory relief in pleadings or by agreeing to contractual jury waivers present in an agreement tangential to the central issue. New York courts often enforce these waivers expansively, applying them to a wide range of claims beyond just breach of contract. Once the right to a jury trial is lost, it cannot be restored by amending pleadings or withdrawing equitable claims. Therefore, careful drafting, thorough review of agreements, and a strategic approach to pleadings and motion practice are crucial to preserving or intentionally waiving the right to a jury trial. By mastering these nuances, practitioners can better protect their clients’ interests and avoid unintended waivers.

Dennis McPeck and Emily Riccio contributed to this article.

This article appears in an issue of NYLitigator, a publication of the Commercial and Federal Litigation Section. For more information, visit nysba.org/comfed.

Endnotes:

[1] See Staunton v. Brooks, 129 A.D.3d 1371, 1374, 12 N.Y.S.3d 324, 327 (3d Dep’t 2015).

[2] See Blackman v. Metro. Transit Auth., 225 A.D.3d 736, 737, 206 N.Y.S.3d 716, 718 (2d Dep’t. 2024) (citations omitted) (“A jury trial will not be waived if the equitable relief sought by the plaintiff is ‘incidental to [his or her] demand for money damages’”).

[3] 219 A.D.3d 1002, 193 N.Y.S.3d 748 (3d Dep’t 2023).

[4] 189 A.D.3d 1543, 135 N.Y.S.3d 297 (2d Dep’t 2020).

[5] 164 A.D.2d 845, 559 N.Y.S.2d 888 (1st Dep’t 1990).

[6] Id. at 847.

[7] Darwish Auto Grp., LLC v. TD Bank, N.A., No. 905851-22, 2025 N.Y. Misc. LEXIS 5441 (Sup. Ct. Albany Cnty. June 9, 2025), appeal filed (3d Dep’t July 3, 2025).

[8] Predicating the equitable accounting claim was a sworn statement by Darwish that he lacked an otherwise adequate legal remedy. See id. at 7.

[9] 116 P.3d 479 (Cal. 2005) (controlling California state law on pre-dispute jury trial waivers).

[10] See id. at 485 (“As our recitation of California’s constitutional history reveals, unless the Legislature prescribes a jury waiver method, we cannot enforce it.”). Section 16 of Article I of the California Constitution specifies circumstances under which a jury trial may be waived in a civil case; however, the court held that these provisions apply only once there is a pending action. Id.

[11] See Chase Com. Corp. v. Owen, 588 N.E.2d 705 (Mass. App. Ct. 1992) (holding contractual jury waivers enforceable). Massachusetts state courts enforce pre-dispute waivers of the right to a jury trial unless the waiver is unclear, offends public policy, or is unconscionable. Id. at 708. In this case, while the guaranty agreement central to the claims did not include a waiver, other adjacent agreements did, and therefore, the right to a jury waiver on all claims was contractually waived. Id. at 706.

[12] 34 A.D.3d 791, 826 N.Y.S.2d 623 (2d Dep’t 2006).

[13] 174 A.D.2d 963, 571 N.Y.S.2d 650 (3d Dep’t 1991).

[14] See id. at 965 (applying provisions in collateral agreements to all claims). The court specifically noted:

As for defendants’ contention that they should not be bound by the waivers because their counterclaims largely sound in intentional tort, as opposed to breach of contract … the claims contained in defendants’ various counterclaims are actually based on plaintiff’s alleged violation of various provisions of the underlying agreements.  Id.

[15] No. 905851-22, 2025 N.Y. Misc. LEXIS 5541, at *1 (Jun. 9, 2025).

[16] See id. at 10-11.