Ray Haber, et al., respondents, v. Betty Cohen, et al., appellants (and a third-party action). (2010)

Argued-March 18, 2010

DECISION & ORDER

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, AD3d [Appellate Divison Docket No. 2009-07508;  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;  City of New York v. Philips, 272 A.D.2d 568;  Whipple v. Trail Props., 261 A.D.2d 470;  Adelstein v. City of New York, 212 A.D.2d 748;  cf.  Anesthesia Assoc. of Mount Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481).

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 A.D.2d at 470;  cf.  Giammalvo v. 2170-2178 Broadway, 293 A.D.2d 390;  Mirasola v. Gilman, 104 A.D.2d 932, 932).

MASTRO, J.P., DICKERSON, BELEN and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court