Nationscredit Financial Services Corp. v. Turcios

55 A.D.3d 806, 865 N.Y.S.2d 556

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 2008
• Status: Published

Opinion

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.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

The Supreme Court improperly denied the plaintiffs 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 [2004]; Goldberg v Goldberg, 173 AD2d 679, 681 [1991]; Seneca v Novaro, 80 AD2d 909, 910 [1981]; Compact Electra Corp. v Connell, 46 AD2d 649, 650 [1974]; Academy St. Realty Corp. v Young, 25 AD2d 435 [1966]). Accordingly, the Supreme Court should have granted the plaintiffs motion to strike the defendants’ jury demand. Mastro, J.E, Fisher, McCarthy and Leventhal, JJ., concur.