In re the Estate of Petrocelli , 763 N.Y.S.2d 73 ( 2003 )

In a proceeding to settle the coexecutors’ amended intermediate account, the appeal is from an order of the Surrogate’s Court, Queens County (Nahman, S.), dated January 4, 2002, which granted the motion of the coexecutors to vacate the objectant’s demand for a jury trial.

Ordered that the order is affirmed, without costs or disbursements.

The relevant facts underlying this appeal are set forth in the decision on the companion appeal (see Matter of Petrocelli, 307 AD2d 358 [2003] [decided herewith]).

Contrary to the objectant’s contention, the Surrogate’s Court correctly granted the motion of the coexecutors to strike his jury demand. The objectant argues that certain of his objections allege conversion and/or seek replevin, and thus, the proceeding is one in law, entitling him to a jury trial. However, the right to the relief sought is not predicated upon legal title in the objectant. Rather, it is predicated upon the alleged ownership of assets by the decedent at the time of her death. Therefore, the nature of the proceeding is in equity, not law, and the objectant’s jury demand was properly stricken (see SCPA 502 [1]; Cobblah v Katende, 275 AD2d 637 [2000]; cf. Matter of Sackler, 222 AD2d 9 [1996]). S. Miller, J.P., Gold-stein, Friedmann and Cozier, JJ., concur.