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DECANA INC. v. CONTOGOURIS

45 A.D.3d 363 (2007)

846 N.Y.S.2d 20

DECANA INC. et al., Appellants, v. SPYRO C. CONTOGOURIS et al., Defendants, and NORTH FORK BANK et al., Respondents. (And a Third-Party Action.)

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided November 13, 2007.

Plaintiffs' claims seeking rescission of defendants' mortgages, although equitable in nature, are triable by jury (CPLR 4101 [2]; RPAPL 1501 [5]), absent a waiver. All the equitable relief sought by plaintiffs in addition to RPAPL article 15 rescission is incidental to the latter, and thus did not result in a waiver. More particularly, the requested injunctive relief, which seeks to prevent the mortgagees from commencing foreclosure proceedings, is incidental to the RPAPL...

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