JUDITH BLOOMFIELD D/B/A 229 WEST STREET ASSOCIATES, petres, v. ANTONIO CRUZ A/K/A ANTONIO CRUZ, JR., res, VICTOR CRUZ, resund-ap, “JOHN DOE” AND/OR “JANE DOE,” res-und
12-267. JUDITH BLOOMFIELD D/B/A 229 WEST STREET ASSOCIATES, petres, v. ANTONIO CRUZ A/K/A ANTONIO CRUZ, JR., res, VICTOR CRUZ, resund-ap, "JOHN DOE" AND/OR "JANE DOE," res-und Order (Michelle D. Schreiber, J.), dated November 14, 2011, modified to deny that branch of petitioner's reargued motion as sought to strike respondent's jury demand and, as modified, affirmed, without costs.
Petitioner's motion to strike respondent-appellant's jury demand should have been denied, since "the mere assertion by [appellant] of equitable defenses could not fairly, without the concomitant assertion of equitable counterclaims, result in a waiver of the right to a jury" (see Hudson View II Associates v. Gooden, 222 AD2d 163, 167 ). Nor does the record before us support the court's apparent conclusion that the jury demand was "untimely," an argument not advanced by petitioner below.
We have considered and rejected appellant's remaining arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.