Opinion
October 1, 1993
Appeal from the Supreme Court, Onondaga County, Nicholson, J.
Present — Green, J.P., Balio, Fallon, Doerr and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed with costs to plaintiffs in accordance with the following Memorandum: Although plaintiffs' commercial lease contained a provision waiving the right to trial by jury of any action arising out of that lease, that waiver does not apply to plaintiffs' causes of action alleging that plaintiff Ferry was induced to enter into the lease agreement by defendant's fraudulent misrepresentations (see, Bank of N.Y. v. Cheng Yu Corp., 67 A.D.2d 961; Gardner North Roofing Siding Corp. v Champagne, 55 Misc.2d 413; Federal Housecraft v. Faria, 28 Misc.2d 155). Further, plaintiffs did not waive their right to a jury trial on those causes of action by seeking, in addition to money damages, the equitable remedy of rescission (see, Federal Housecraft v. Faria, supra). Thus, Supreme Court properly denied defendant's motion to strike plaintiffs' demand for a jury trial of the fraudulent inducement causes of action. We modify the order, however, to strike plaintiffs' jury demand with respect to the remaining cause of action for breach of contract. The contractual jury waiver provision fully applies to that cause of action.