Merchants Bank of New York, Respondent, v. Bass & Bass, Inc., et al., Appellants

Merchants Bank of New York, Respondent, v Bass & Bass, Inc., et al., Appellants. [617 NYS2d 641] [MAJORITY] Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered May 17, 1994, which granted plaintiff’s motion to strike defendants’ jury demand with respect to defendants’ counterclaims, unanimously modified, on the law, to the extent of denying plaintiff’s motion to strike defendants’ jury demand as to the second counterclaim, and otherwise affirmed, without costs. The second counterclaim, which alleges failure of the Bank to collect certain monies on behalf of Bass & Bass, Inc. pursuant to, inter alia, an irrevocable letter of credit issued by Metro Plaza, Inc., is not based on the notes upon which plaintiff sues and which contain a jury trial waiver. Accordingly, the second counterclaim should be severed from the other counterclaims and presented to a jury (Chemical Bank v Summers, 67 AD2d 856). We find that the remaining counterclaims are clearly based on the notes, and are thus covered by the jury waiver recited in those notes. (Chemical Bank v Summers, supra.) Concur— Carro, J. P., Rosenberger, Ellerin, Nardelli and Tom, JJ.