Daley v. Related Companies, Inc.

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about September 25, 1994, which granted the defendants’ motion to strike the plaintiffs jury demand, unanimously affirmed, without costs.

Plaintiff has waived his right to a jury trial by including a claim for equitable relief which is not merely incidental to his claims at law (see, Cadwalader Wickersham & Taft v Spinale, 177 AD2d 315; Zimmer-Masiello, Inc. v Zimmer, Inc., 164 AD2d 845). The employment agreement at issue concerns the plaintiffs inclusion in partnerships which will provide him with tax shelters for certain amounts of compensation. Though the contract provides for, essentially, money damages if those tax shelters are unavailable to plaintiff, the primary relief sought is equitable because the court would have to order specific performance in order for the plaintiff to take advantage of these tax benefits. Concur—Ellerin, J. P., Rubin, Ross, Nardelli and Tom, JJ.