
    Barbara Muney LIBERTELLI, Plaintiff, v. HOFFMAN-LA ROCHE INC., Defendant.
    No. 80 Civ. 5626 (RWS).
    United States District Court, S.D. New York.
    Nov. 8, 1982.
   MEMORANDUM OPINION

SWEET, District Judge.

In an opinion dated July 31, 1981, this court partially granted defendant HoffmanLaRoche’s (“LaRoche”) motion to dismiss the complaint and for summary judgment on statute of limitations grounds. LaRoehe’s motion was denied as to damages allegedly sustained by plaintiff Barbara Muney Libertelli (“Libertelli”) from October 1,1970 until 1975 pending a fact-finding hearing on the issue of whether Libertelli was insane for the purposes of tolling the statute of limitations under N.Y.C.P.L.R. § 208 (McKinney Supp. 1981). In the interim, Libertelli has requested a jury for the fact-finding hearing. LaRoche has opposed the request. It is not disputed that Libertelli would have a right to a jury at a trial on the merits.

Since summary judgment is not intended to cut off the right to a jury trial where there are facts in dispute, the fact-finding hearing will be conducted with a jury. See Robertson v. Seidman & Seidman, 609 F.2d 583, 591-93 (2d Cir.1979); Nunez v. Superi- or Oil Co., 572 F.2d 1119, 1124 (5th Cir.1978); United States v. J.B. Williams Co., 498 F.2d 414, 430 n. 19 (2d Cir.1974); Graboi v. Kibel, 432 F.Supp. 572, 577 n. 6 (S.D.N.Y.1977). See generally 6 Moore’s Federal Practice ¶ 56.06 (2d ed. 1982).

In its opposition to the request for a jury, Hoffman-LaRoche relies almost exclusively on New York state court cases. These cases are irrelevant, however, because federal law controls both the right to a jury trial in federal court, Simler v. Conner, 372 U.S. 221, 222, 83 S.Ct. 609, 610, 9 L.Ed.2d 691 (1963), and the standards for granting summary judgment, Nunez v. Superior Oil Co., supra, 572 F.2d at 1123 n. 5.

The parties are directed to submit proposed jury charges and voir dire requests by November 9, 1982, at which time the action will be added to the trial calendar.

IT IS SO ORDERED.  