Opinion
February 5, 1996
Appeal from the Supreme Court, Nassau County (DiNoto, J.).
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 A.D.2d 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 a jury trial on this defense (4 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 4102.13, at 41-89; see, Bank of N.Y. v. Cheng Yu Corp., 67 A.D.2d 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.