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Real Estate Webmasters v. Rodeo Realty Inc.

Defendant in Commercial Action Waived Its Right to a Jury Trial

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Plaintiff Real Estate Webmasters Inc. (“REW”) moves for an order striking the jury demand served by defendant Rodeo Realty, Inc. (“Rodeo”). Rodeo opposes the motion. BACKGROUND REW commenced this commercial action on July 25, 2018, seeking to recover damages for Rodeo’s alleged anticipatory breach of an agreement (see NYSCEF Doc No. 3 ["Service Agreement" or "Agreement"]) by which it was engaged to develop a custom website for Rodeo (see NYSCEF Doc No. 2 ["Complaint"]). Following joinder of issue, REW moved under CPLR 3212 (e) for partial summary judgment as to Rodeo’s liability on the sole claim alleged in the Complaint: that Rodeo anticipatorily “repudiated the Service Agreement by advising REW in writing that Rodeo…did not intend to comply with its obligations” (id., 18; see also NYSCEF Doc No. 10). The motion further sought to establish REW’s entitlement to dismissal of the affirmative defenses bearing on liability and Rodeo’s four counterclaims seeking affirmative relief (see NYSCEF Doc No. 22 ["Answer"]). In its Decision & Order dated May 14, 2020 (see NYSCEF Doc No. 59 ["SJ Decision"]), the Court first determined that REW had “met its initial burden of establishing its entitlement to summary judgment as to liability…, as well as the dismissal of Rodeo’s affirmative defenses and counterclaims” (id., p. 10). The Court further concluded that Rodeo had raised triable issues of fact as to its affirmative defense alleging an “entitle[ment] to rescission and/or restitution due to [REW's] own fraud and/or misrepresentations” (Answer, 33) and as to the counterclaim for fraudulent inducement (see SJ Decision, p. 17; see also Answer, Counterclaims,

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