Opinion
March 14, 1988
Appeal from the Supreme Court, Rockland County (Edelstein, J.).
Ordered that the appeal from the order dated October 27, 1986, is dismissed, as that order was superseded by the order dated November 20, 1986, made upon reargument; and it is further,
Ordered that the order dated November 20, 1986 is affirmed insofar as reviewed; and it is further,
Ordered that the defendants are awarded one bill of costs.
The plaintiff herein orally contracted with the defendants to make improvements to their home. When a dispute arose between the parties, work ceased and the plaintiff filed a mechanic's lien against the property, claiming that $24,085 was still due and owing. Thereafter the plaintiff sued seeking foreclosure or, in the event the lien was declared invalid, for a money judgment. The plaintiff contends that his action is equitable in nature and that the defendants, by asserting legal counterclaims in their answer, have waived their right to a jury trial on those counterclaims pursuant to Lien Law § 45. We disagree. Regardless of the plaintiff's characterization of the action, our evaluation of the pleadings convinces us that the action is in essence one for breach of contract and the defendants are therefore entitled to a jury trial on their legal counterclaims (see, Cowper Co. v. Buffalo Hotel Dev. Venture, 99 A.D.2d 19, 21-23).
We find no abuse of discretion in the court's denial of the plaintiff's request to personally inspect the premises along with his expert. Mangano, J.P., Thompson, Brown and Sullivan, JJ., concur.