UNI-RTY Corp. v. N.Y. Guangdong Fin., Inc.

203 A.D.3d 498

160 N.Y.S.3d 877 (Mem)

In the Matter of UNI–RTY CORPORATION et al., Petitioners–Respondents,

v.NEW YORK GUANGDONG FINANCE, INC., et al., Respondents–Appellants.

14881

Index No. 157621/12

Case No. 2021–01833

Supreme Court, Appellate Division, First Department, New York.

ENTERED: March 10, 2022

Cooley LLP, New York (William J. Schwarz of counsel), for New York Guangdong Finance, Inc., Guangdong Building Inc., The Estate of Joseph Chu, Alexander Chu, Centre Plaza, L.L.C. and Eastbank, N.A., appellants.

White & Case LLP, New York (Jacqueline L. Chung of counsel), for China Construction Bank and Agricultural Bank of China, appellants.

Kaiser Saurborn & Mair, P.C., New York (Henry L. Saurborn, Jr. of counsel), for respondents.

Kapnick, J.P., Friedman, Gonza´lez, Rodriguez, Pitt, JJ.

Order, Supreme Court, New York County (Laurence L. Love, J.), entered April 23, 2021, which denied the motion of respondents New York Guangdong Finance, Inc. (N.Y.GFI), Guangdong Building Inc., Estate of Joseph Chu, Alexander Chu, Centre Plaza, L.L.C., and Eastbank, N.A. to strike petitioners' demand for a jury trial and the cross motion of China Construction Bank and Agricultural Bank of China (together, the banks) for the same relief, unanimously reversed, on the law, and the motion and cross motion granted, without costs.

Petitioners allege that the banks and Joseph and Alexander Chu together, the individual Chus, who were all shareholders of NYGFI, engineered a 2005 settlement of shareholder derivative actions to insulate NYGFI assets from claims asserted by petitioners in a then-pending federal action against NYGFI and the individual Chus. Petitioners ultimately prevailed in the federal action and in 2013 docketed a judgment against NYGFI that remains unsatisfied. Petitioners commenced a "turnover" special proceeding under CPLR article 52 and sought a judgment among other things, "seeking ... ‘turnover’ of NYGFI assets to satisfy [p]etitioners' judgment ... compelling the non-debtor [r]espondents to disclose, bring within the jurisdiction, and make accessible for execution ... all cash, income, distributions and funds ... including all membership interests in limited lability companies ... and shares in corporations and interests in partnerships ... and granting the appointment of a CPLR [a]rticle 52 receiver."

Supreme Court should have stricken petitioners' jury demand. As we have stated "[a][p]laintiff is not entitled to a jury trial ... [when] he seeks to enforce a judgment against a party other than the judgment debtor, which is an equitable claim" ( Jonke v. Foot Locker, Inc., 181 A.D.3d 544, 545, 119 N.Y.S.3d 741 [1st Dept. 2020], citing Matter of Colonial Sur. Co. v. Lakeview Advisors, LLC, 125 A.D.3d 1292, 1295, 3 N.Y.S.3d 800 [4th Dept. 2015], lv denied 26 N.Y.3d 901, 2015 WL 5123384 [2015] ; see also David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 5225:6 at 391).

Even assuming that petitioners included a request for legal...