McDonald v. Justian

—In two related actions to recover damages for personal injuries which were consolidated for trial, Christine McDonald and Gary McDonald appeal from an order of the Supreme Court, Suffolk County (Berler, J.), dated October 25, 2000, which denied their motion for leave to serve and file a jury demand nunc pro tunc. Ordered that the order is reversed, on the law and as a matter of discretion, without costs or disbursements, the motion is granted, and the appellants are granted leave to serve and file a jury demand within 20 days after service upon them of a copy of this decision and order with notice of entry. In view of, inter alia, the stipulation in which the parties agreed to the rescission of the appellants’ unintentional jury waiver and to the belated filing of a jury demand, as well as the appellants’ prompt application for relief, the Supreme Court improvidently exercised its discretion in denying the appellants’ motion (see, CPLR 4102 [a]; A.S.L. Enters. v Venus Labs., 264 AD2d 372; Breezy Point Coop. v Young, 234 AD2d 409). Bracken, P. J., S. Miller, McGinity and Schmidt, JJ., concur.