Bank of New York v. Royal Athletic Industries, Ltd.

224 A.D.2d 380, 637 N.Y.S.2d 478, 1996 N.Y. App. Div. LEXIS 899

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1996
• Status: Published

Opinion

—In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Nassau County (DiNoto, J.),' dated November 21, 1994, which denied its motion to strike the demand of the defendants Joseph Guercia and Guy DiGennaro for a jury trial.

Ordered that the order is affirmed, with costs.

The plaintiff’s motion to strike the jury demand of the respondents Joseph Guercia and Guy DiGennaro was properly denied. Although the provision setting forth a waiver of a jury trial contained in the personal guarantees executed by Guercia and DiGennaro was valid (see, Gunn v Palmieri, 187 AD2d 485, 486), they asserted as an affirmative defense in their answer that they had validly revoked the guarantees according to the terms of those documents. By asserting this defense, the respondents are challenging the validity of those guarantees, and therefore, they are entitled to á jury trial on this defense (4 Weinstein-Korn-Miller, NY Civ Prac 4102.13, at 41-89; see, Bank of N. Y. v Cheng Yu Corp., 67 AD2d 961). If the respondents are found to have effectively revoked their guarantees, then the complaint will be dismissed insofar as it is asserted against them; if not, they must proceed on the remainder of the complaint in a nonjury trial (see, Gardner & North Roofing & Siding Corp. v Champagne, 55 Misc 2d 413, 416). Bracken, J. P., Miller, Joy, Hart and Krausman, JJ., concur.