Opinion
May 10, 1993
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, the appellant's motion is granted, and the default judgment entered September 20, 1990, is vacated.
Although CPLR 2104 requires that "an extension of time to answer, to be binding, must be in writing and subscribed by the party to be charged" (Saltzman v Knockout Chem. Equip. Co., 108 A.D.2d 908; see also, Tate v Fusco, 103 A.D.2d 869), a party is precluded from invoking CPLR 2104 to avoid an oral stipulation if it appears that the stipulation was made and that the adverse party relied upon it (see, La Marque v North Shore Univ. Hosp., 120 A.D.2d 572; 2A Weinstein-Korn-Miller, N Y Civ Prac ¶ 2104.04). In the instant case, the plaintiff's attorney admits that on July 26, 1990, prior to the expiration of the appellant's time to answer, he orally agreed to grant the appellant "a brief extension of time to answer". Moreover, while there is some dispute as to the terms of the oral agreement, it is uncontroverted that on September 6, 1990, the plaintiff's attorney advised the appellant that its extension of time would expire on September 14, 1990. Under these circumstances, we cannot say that the appellant's reliance upon the oral extension was unjustified, and that the appellant was in default when it served its answer on September 10, 1990 (see, La Marque v North Shore Univ. Hosp., supra). Accordingly, the appellant's motion to vacate the default judgment entered against it on September 20, 1990, is granted. Balletta, J.P., Eiber, and Santucci, JJ., concur.
The purpose of the requirement of a written stipulation in CPLR 2104 is to remove the court from disputes such as this between attorneys (see, Bates Real Estate v Marquette Land Co., 93 A.D.2d 939; 2A Weinstein-Korn-Miller, N Y Civ Prac ¶ 2104.04). Although courts have declined to enforce the rule where a party can establish that it justifiably relied on an oral stipulation (see, e.g., La Marque v North Shore Univ. Hosp., 120 A.D.2d 572; Saltzman v Knockout Chem. Equip. Co., 108 A.D.2d 908), I believe that this exception should be applied sparingly and not in cases where, as here, the evidence that the parties even entered into an oral stipulation is extremely weak. Accordingly, I would find that the appellant was in default when it served its answer on September 10, 1990.
Further, it is well settled that a party seeking to vacate a default in answering must establish that there is a reasonable excuse for the delay and that there exists a meritorious claim or defense (see, McFadden v Battaglia, 159 A.D.2d 700; Cooper Motor Leasing v Data Discount Ctr., 125 A.D.2d 454). The appellant failed to establish that it has a meritorious defense to this action. I would therefore affirm the Supreme Court's denial of the motion to vacate its default.