Leemilt's Petroleum, Inc. v. Public Storage, Inc.

In an action, inter alia, to recover certain funds deposited in an escrow account, the defendant Chicago Title Insurance Company appeals from an order of the Supreme Court, Nassau County (Molloy, J.), dated November 21, 1990, which denied its motion to vacate a default judgment entered against it on September 20, 1990.

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 AD2d 908; see also, Tate v Fusco, 103 AD2d 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 AD2d 572; 2A Weinstein-KornMiller, NY Civ Prac j| 2104.04). In the instant case, the plaintiffs 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 plaintiffs 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.