SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

679 

CA 14-01763 

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ. 

 

CANANDAIGUA EMERGENCY SQUAD, INC., PENFIELD 

VOLUNTEER EMERGENCY AMBULANCE SERVICE, INC., 

NORTHEAST QUADRANT ADVANCED LIFE SUPPORT, INC., 

CHILI VOLUNTEER AMBULANCE SERVICE, INC., AND 

VILLAGE OF MACEDON, PLAINTIFFS-APPELLANTS,

 

V MEMORANDUM AND ORDER

ROCHESTER AREA HEALTH MAINTENANCE ORGANIZATION, 

INC., DOING BUSINESS AS PREFERRED CARE, 

DEFENDANT-RESPONDENT. 

(APPEAL NO. 1.) 

 

PINSKY LAW GROUP, PLLC, SYRACUSE (BRADLEY M. PINSKY OF COUNSEL), FOR

PLAINTIFFS-APPELLANTS. 

LECLAIR KORONA GIORDANO COLE LLP, ROCHESTER (JEREMY M. SHER OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Matthew

A. Rosenbaum, J.), entered December 26, 2013. The order, among other

things, granted defendant’s motion to strike plaintiffs’ demand for a

jury trial. 

It is hereby ORDERED that said appeal from that part of the

second ordering paragraph denying that part of plaintiffs’ cross

motion seeking to preclude certain evidence, and from the third and

fourth ordering paragraphs is unanimously dismissed (see Loafin’ Tree

Rest. v Pardi [appeal No. 1], 162 AD2d 985, 985), and the order is

modified on the law by denying the motion, and as modified the order

is affirmed without costs. 

Memorandum: Plaintiffs are various entities that provided

emergency ambulance services to persons enrolled in health insurance

plans administered by defendant. Plaintiffs submitted bills to

defendant, and defendant remitted payments to plaintiffs for those

services. In 2008, defendant informed plaintiffs that it overpaid

them for services provided in 2007 and 2008, and it thereafter reduced

payments made to plaintiffs in order to recoup the alleged

overpayments for that period. Plaintiffs commenced this action

challenging defendant’s right to recoup the alleged overpayments. 

Defendant filed a note of issue requesting a nonjury trial and

plaintiffs responded with a demand for a jury trial. Defendant moved
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CA 14-01763 

to strike the demand, and plaintiffs cross-moved to dismiss certain

affirmative defenses and to preclude defendant from introducing

evidence that its alleged overpayments were based upon mistakes

attributable to the computer software program used by defendant to

process payments to plaintiffs. 

By the order in appeal No. 1, Supreme Court granted defendant’s

motion and that part of plaintiffs’ cross motion seeking dismissal of

the sixth affirmative defense. The court otherwise denied the cross

motion. In addition, the court, sua sponte, struck the amended note

of issue and certificate of readiness and granted defendant leave to

amend its answer with counterclaims “for the sole purpose of pleading

a defense based upon the software error.”

Defendant moved to reargue that part of plaintiffs’ cross motion

seeking to preclude defendant from introducing evidence concerning the

alleged software error, and to strike, as unnecessary, those parts of

the order that the court granted sua sponte. By the order in appeal

No. 2, the court granted defendant’s motion in its entirety and, upon

reargument, adhered to its decision denying that part of plaintiffs’

cross motion seeking to preclude evidence.

In appeal No. 1, plaintiffs’ “notice of cross appeal” expressly

limited the scope of the appeal and did not include that part of the

order denying their cross motion insofar as it sought dismissal of the

first and fifth affirmative defenses. We decline to exercise our

discretion to construe the notice of appeal to encompass plaintiffs’

contention that the court erred in denying the cross motion to that

extent (see Haas v Haas, 265 AD2d 887, 888-889; see generally

McSparron v McSparron, 87 NY2d 275, 282, rearg dismissed 88 NY2d 916).

We agree with plaintiffs in appeal No. 1, however, that the court

erred in granting defendant’s motion to strike their demand for a jury

trial, and we therefore modify the order accordingly. The question

whether plaintiffs are entitled to a jury trial turns on whether “the

underlying claims set forth in the complaint are legal rather than

equitable in nature” (Martell v North Riv. Ins. Co., 107 AD2d 948,

949). Here, we conclude that plaintiffs’ request for “a declaration

that [defendant] is not entitled to offset or recoup any funds from

[p]laintiffs” is incidental to their request for monetary relief. 

“[V]iewed in its entirety, the primary character of the case is legal”

(Cadwalader Wickersham & Taft v Spinale, 177 AD2d 315, 316), and “the

complaint contains ‘demands and sets forth facts which would permit a

judgment for a sum of money only’ ” (Harris v Trustco Bank N.Y., 224

AD2d 790, 791, quoting CPLR 4101 [1]).

In appeal No. 2, the court, upon reargument, properly adhered to

its prior decision denying that part of the cross motion seeking to

preclude defendant from introducing evidence concerning its mistaken

overpayments arising from the alleged software error. Contrary to

plaintiffs’ contention, the record is replete with references to that

alleged error, which is at the foundation of defendant’s counterclaims

for restitution and money had and received (see Banque Worms v Bank

America Intl., 77 NY2d 362, 366-367; Manufacturers Hanover Trust Co. v
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CA 14-01763 

Chemical Bank, 160 AD2d 113, 117-118, lv denied 77 NY2d 803). 

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court