Opinion
No. 2007-07123.
October 21, 2008.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (R. Doyle, J.), dated July 17, 2007, which denied its motion to strike the jury demand of the defendants Luis A. Turcios and Aurora Velasquez.
The Law Offices of Alan Weinreb, PLLC (Stim Warmuth, P.C., Farmingville, N.Y. [Paula J. Warmuth], of counsel), for appellant.
Jeffrey M. Novick, Woodbury, N.Y. (Debra A. Kruper of counsel), for respondents.
Before: Mastro, J.P., Fisher, McCarthy and Leventhal, JJ.
Ordered that the order is reversed, on the law, with costs, and the motion is granted.
The Supreme Court improperly denied the plaintiff's motion to strike a jury demand filed by the defendant mortgagors Luis A. Turcios and Aurora Velasquez (hereinafter the defendants). Where, as here, a defendant interposes a counterclaim of an equitable nature related to a cause of action asserted in the complaint, the defendant thereby waives a jury trial on all causes of action, whether legal or equitable in nature ( see Herbil Holding Co. v Mitrany, 11 AD3d 430; Goldberg v Goldberg, 173 AD2d 679, 681; Seneca v Novaro, 80 AD2d 909, 910; Compact Electra Corp. v Connell, 46 AD2d 649, 650; Academy St. Realty Corp. v Young, 25 AD2d 435). Accordingly, the Supreme Court should have granted the plaintiff's motion to strike the defendants jury demand.