On May 31, 2023, the Second Department issued a decision in Piccoli v. Cerra, Inc., 2023 NY Slip Op. 02901, holding that defendants waived their right to a jury trial by making an equitable counterclaim, explaining:
The Supreme Court properly granted the plaintiffs’ motion to strike the defendants’ demand for a jury trial. Where a plaintiff brings a claim triable by jury and the defendant interposes a related counterclaim not triable by jury, the defendant is held to have waived a jury trial even on the main claim. Here, contrary to the defendants’ contention, their first counterclaim seeks an equitable remedy on its face and in nature and, thus, they waived their right to a jury trial.
(Internal quotations and citations omitted).