As far as the merits of the sixth cause of action are concerned, defendants argue that their decision denying Smith's claims in 1991 should be given deference because the decision was neither arbitrary nor capricious.
While I express no view as to the ultimate merit of Smith's claims, the preceding discussion concerning the statute of limitations makes clear that this cause of action involves genuine issues of material fact concerning what promises, if any, were made to the sales employees, and whether any contractual obligations were breached. Therefore, I deny defendants' motion for summary judgment on this cause of action.
7. Right to a Jury Trial
Smith has made a demand for a jury trial on his first, second, fifth, and sixth causes of action. Defendants move to strike the demand on the ground that jury trials are not available in ERISA cases.
The jury trial demand is now moot as to the first, second, and fifth causes of action, since I have granted judgment to one side or the other on all those claims. The only remaining claim subject to the demand is the sixth cause of action, which relates to benefits governed both by state law and by ERISA.
Defendants' motion is based in part on the assumption that none of plaintiff's state claims would survive their summary judgment motion. Since that is not the case, defendants' position on the jury trial issue is not clear.
It also has not been definitively resolved in the Second Circuit whether jury trials are available in ERISA cases. See Katsaros v. Cody, 744 F.2d 270, 278 (2d Cir. 1984), cert. denied sub nom. Cody v. Donovan, 469 U.S. 1072, 83 L. Ed. 2d 506, 105 S. Ct. 565 (1984); see also Clay v. ILC Data Device Corp., 771 F. Supp. 40, 46 (E.D.N.Y. 1991); Resnick v. Resnick, 763 F. Supp. 760, 765 (S.D.N.Y. 1991). If they are not, there could be some effect on the right to a jury trial on the state law claims. See Resnick, 763 F. Supp. at 766.
In view of the present posture of the case, I decline to decide the motion at this time. Since a trial date has not yet been set, no prejudice will result to either party. I will therefore defer deciding the motion to strike plaintiff's demand for a jury trial.
For these reasons, it is hereby
ORDERED that defendants' motion for summary judgment is granted as to the fourth and fifth causes of action, both of which are dismissed with prejudice. The motion is also granted in part as to the first cause of action. The motion is denied as to the second, third and sixth causes of action. It is further
ORDERED that plaintiff is granted summary judgment as to the second cause of action, and is granted summary judgment in part as to the first cause of action. The parties are directed to submit proof of damages on the first and second causes of action within twenty (20) days of the date of entry of this order, absent a stipulation.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
February 13, 1992