Haber v. Cohen

Jun 29, 2010
Versions:74 A.D.3d 1282
903 N.Y.S.2d 242

Ray Haber et al., Respondents, v Betty Cohen et al., Appellants. (And Third-Party Action.) [903 NYS2d 242]—

In an action, inter alia, to recover damages for negligence and trespass, the defendants appeal from so much of an order of the Supreme Court, Kings County (Kurtz, J.), dated October 21, 2009, as granted the plaintiffs’ motion to strike their demand for a trial by jury.

Ordered that the order is affirmed insofar as appealed from, with costs.

The facts of this case are set forth in the companion appeal (see Haber v Cohen, 74 AD3d 1281 [2010] [decided herewith]).

The Supreme Court properly determined that the defendants waived their right to a trial by jury by including counterclaims for equitable relief along with their counterclaims for legal relief (see Herbil Holding Co. v Mitrany, 11 AD3d 430 [2004]; City of New York v Philips, 272 AD2d 568 [2000]; Whipple v Trail Props., 261 AD2d 470 [1999]; Adelstein v City of New York, 212 AD2d 748 [1995]; cf. Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481 [2009]).

Contrary to the defendants’ contention, the amendment of their counterclaims to withdraw their requests for equitable relief did not revive their right to a trial by jury (see Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d at 482; Whipple v Trail Props., 261 AD2d at 470; cf. Giammalvo v 2170-2178 Broadway, 293 AD2d 390 [2002]; Mirasola v Gilman, 104 AD2d 932 [1984]).

Mastro, J.P., Dickerson, Belen and Chambers, JJ., concur.