CPLR Section 4102: Correlation Between Demand And Waiver Of Trial

Under the rule of joinder, where a plaintiff has two or more entirely separate claims emanating from separate transactions, he can sue on them in one action. CPLR section 4102(c) provides that a party has not waived his right to a trial by jury by joining a legal claim with another claim not triable by jury which arose out of a separate transaction. Thus, a plaintiff is entitled to a jury trial on its legal claims for relief when its equitable claims for relief arise out of an entirely separate transaction than that which gave rise to its legal claims. CPLR section 4102 works in conjunction with section 4101 regarding demand and waiver of trial by jury. If an action is triable of right by a jury, a jury trial still must be affirmatively
Without engaging in the proper analysis, it is inaccurate to say that the plaintiff’s complaint cannot deprive the defendant of a jury trial. Where the main thrust of the action is equitable, the defendant does not have a right to a jury on the incidental legal issues arising in the main action. Though the analysis does not change, the results truly become divergent when defenses and counterclaims are
Commentators and courts have noted that because certain equitable defenses were statutorily required to be tried by jury prior to the adoption of the 1894 Constitution, the deprivation of a jury trial for all equitable defenses is arguably unconstitutional.
Under CPLR section 4101, when a plaintiff brings a legal action, the defendant’s equitable counterclaims should not be submitted to a jury. Under CPLR section 4102(c), when a plaintiff brings an action sounding in equity, the defendant’s legal counterclaims should be tried by a jury if so demanded. The counterclaims pled by a defendant enjoy the same careful analysis as the claims contained in the plaintiff’s complaint. The rule remains: a pleader waives the right to a jury trial by joining legal and imperatively required equitable counterclaims arising out of the same