The opinion of the court was delivered by: John E. Sprizzo, United States District Judge.
MEMORANDUM OPINION AND ORDER
The above-captioned actions come before the Court on Defendant IG
Second Generation Partners, L.P.'s ("IG Second") Motion to Strike
Plaintiff Urban Outfitters, Inc.'s ("Urban") Jury Demand. For the reasons
that follow, Defendant's motion is denied.
These actions center upon allegations by Plaintiff-subtenant Urban that
Defendant-landlord IG Second and Defendant-tenant 166 Enterprise Corp.
("166 Enterprise") breached various agreements between the parties in
providing Urban with a commercial property at 166 Second Avenue, New
York, New York ("the Property") that was unsuitable for Urban's
purposes. See Affidavit of David M. Cassidy dated March 15, 2001 ("Cassidy
Aff."), Exhibit ("Exh.") F, Complaint dated October 14, 1998 ("Cmplt.")
at ¶¶ 9-16. In addition to Plaintiff's claims, Defendants have
asserted cross-claims against each other pursuant to an indemnification
agreement between them, and Defendant 166 Enterprise has asserted a
counterclaim against Urban alleging failure to pay rent. Defendant IG
Second has also impleaded several Third-Party Defendants hired by Urban
to work on the premises, including Urban's general contractor, structural
engineer, engineer, architect, and designer, alleging that such
individuals are responsible for the unsuitability of the premises. See
Affidavit of Geoffrey A. Mason dated February 6, 2001 ("Mason Aff."),
Exh. C., Answer of IG Second dated November 11, 1998 at ¶ 9; Mason
Aff., Exh. D., Answer of 166 Enterprises dated December 8, 1998 at
¶¶ 9-14; Third-Party Complaint by IG Second dated October 29, 1999.
Several of these Third-Party Defendants have in turn asserted
counterclaims against IG Second. See e.g., Counterclaims of Defendants
Vikrant K. Sampat and Wai-Tong Chan dated June 16, 2000 and July 5,
2000. Both Urban and Third-Party Defendant Pompei, the property
designer, have made jury demands for all issues triable by a jury. See
Cassidy Aff., Exh. G, Urban's Demand for Trial by Jury dated November
20, 1998; Cassidy Aff., Exh. I, Pompei's Amended Answer to Amended
Third-Party Complaint dated June 26, 2000, at 8.
Most relevant to the instant motion, on July 31, 1996, Defendants IG
Second and 166 Enterprise entered into a lease for the Property ("the
Prime Lease") which contained the following clause:
It is mutually agreed by and between Owner and Tenant
that the respective parties hereto shall and they
hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal
injury or property damage) on any matters whatsoever
arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's
use of or occupancy of said premises, and any
emergency statutory or other statutory remedy.
Cassidy Aff., Exh. B, Prime Lease at ¶ 25.
Subsequently, on December 19, 1997, 166 Enterprises entered into a
Sublease Agreement with Urban ("the Sublease Agreement") which in part
This sublease is subordinate to all of the terms,
covenants and provisions contained in the Prime Lease
. . . except Articles 2, 40, 41, 53, and 78 . . . and
to the extent . . . such terms, covenants, conditions
and provisions have been modified [by the Sublease
Agreement or other agreements between Urban, IG Second
and 166 Enterprise].
Cassidy Aff., Exh. C, Sublease Agreement at ¶ 10. Articles 2, 40,
41, 53 and 78 are not relevant to this dispute. See Prime Lease at
¶ 2, 40, 41, 53, 78.
Urban also entered into two agreements with both 166 Enterprises and IG
Second, an Agreement of Non-Disturbance and Consent dated February 11,
1998 ("the Consent Agrement") and an Indemnity Agreement dated April 15,
1998 ("the Indemnity Agreement"). See Cassidy Aff., Exh. D, Consent
Agreement; Cassidy Aff., Exh. E, Indemnification Agreement. In
particular, the Indemnity Agreement provided that "[e]xcept as
specifically modified herein, the Sublease and the Consent Agreement
remain unmodified and in full force and effect." Mason Aff., Exh. I,
Indemnity Agreement at ¶ 1.
Courts are to strictly construe jury waiver clauses, as the right to a
jury trial is fundamental and protected by the Seventh Amendment. See
Gargiulo v. DelSole, 769 F.2d 77, 79 (2d Cir. 1985). This right can only
be waived knowingly and intentionally, and waiver is not lightly inferred
or extended. See id. As such, the burden of proving an intentional waiver
is upon the party asserting waiver, ...