Conwell Properties, Inc., appellant, v. DAG LLC (2022)

Supreme Court, Appellate Division, Second Department, New York.

Conwell Properties, Inc., appellant, v. DAG Route Six, LLC, respondent.

2019–08855 (Index No. 500910 /18)

Decided: November 30, 2022

FRANCESCA E. CONNOLLY, J.P. LINDA CHRISTOPHER PAUL WOOTEN LILLIAN WAN, JJ.

Reisman Rubeo & Altman, LLP, Hawthorne, N.Y. (Mark I. Reisman, Mark A. Rubeo, Jr., and Danielle M. White of counsel), for appellant. Piscionere & Nemarow, P.C., Rye, N.Y. (Anthony G. Piscionere and Michael J. Konicoff of counsel), for respondent.

Argued—September 22, 2022

DECISION & ORDER

In an action, inter alia, for declaratory and injunctive relief and to recover damages for breach of an easement agreement, the plaintiff appeals from an order of the Supreme Court, Putnam County (Thomas P. Zugibe, J.), dated July 16, 2019. The order denied the plaintiff's motion to strike the defendant's demand for a jury trial.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion to strike the defendant's demand for a jury trial is granted.

Where, as here, a defendant interposes counterclaims of an equitable nature related to a cause of action asserted in the complaint, the defendant waives a jury trial on all causes of action, whether legal or equitable in nature (see Haber v. Cohen, 74 AD3d 1282, 1282; Adelstein v. City of New York, 212 A.D.2d 748, 749). Accordingly, the Supreme Court should have granted the plaintiff's motion to strike the defendant's demand for a jury trial.

CONNOLLY, J.P., CHRISTOPHER, WOOTEN and WAN, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court

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