ENTERPRISES INC v. VENUS LABORATORIES INC (1999)

In an action to recover damages for breach of contract and fraud, the defendants appeal from an order of the Supreme Court, Nassau County (Joseph, J.), entered August 24, 1998, which denied their motion for leave to serve and file a jury demand nunc pro tunc.

ORDERED that the order is reversed, as a matter of discretion, with costs, the motion is granted, and the defendants 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 the absence of prejudice to the plaintiffs, the fact that the defendants had no intention of waiving a jury trial, and their prompt application to be relieved of their default, it was an improvident exercise of discretion for the Supreme Court to have denied the defendants' motion for leave to serve and file a jury demand (see, CPLR 4102[a];  Breezy Point Coop. v. Young, 234 A.D.2d 409, 410, 651 N.Y.S.2d 121;  Lane v. Marshall, 89 A.D.2d 579, 452 N.Y.S.2d 238;  Calspan Corp. v. Fingermatrix, Inc., 84 A.D.2d 826, 444 N.Y.S.2d 193).

MEMORANDUM BY THE COURT.