SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
October 8, 1968
STEPHEN A. BARROW, APPELLANT,
EDWARD BLOOMFIELD ET AL., RESPONDENTS
Concur -- Botein, P. J., Stevens, Capozzoli, Tilzer and McGivern, JJ.
In this action by plaintiff, a statutory tenant, for malicious prosecution, defendants rely upon a jury waiver provision contained in the initial lease, since expired. There is no question but that such provision was projected into and continued in the statutory tenancy. The clause in question is contained in paragraph 20 of the lease. That paragraph, when read in its entirety, reveals that it is designed to apply to matters arising out of the lease or out of the occupancy of the premises. The present action is not for damages arising out of the lease or even foreseeably resulting from plaintiff's occupation of the leased premises, but is based upon an unrelated tort of malicious prosecution. "A clause purporting to waive the right to trial by jury must be strictly construed against the landlord who draws and proffers the lease containing such a clause "(Levy v. New York Majestic Corp., 3 A.D.2d 477, 478). In the case before us, as in the cited case, the altercation of March 9, 1965, also took place on a common stairway of the premises.
Order entered April 18, 1968, appealed from, unanimously reversed on the law and the facts, with $30 costs and disbursements to appellant, and the motion to strike the action from the General Jury Calendar is denied.
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