McCall v Owens

[*1] McCall v Owens 2008 NY Slip Op 52460(U) [21 Misc 3d 143(A)] Decided on December 3, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 3, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2008-396 K C.

Debra McCall, EDMUND MARBURY, an infant under the age of 18 years by his mother and natural guardian, DEBRA McCALL and CHRISTOPHER McCALL, Respondents,

against

Donnie Owens, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered November 29, 2007. The order denied defendant's motion to vacate default judgments.

Order affirmed without costs.

After defendant failed to appear in this personal injury action, a motion by plaintiffs for the entry of a default judgment was granted, on default, to the extent of setting the matter down for an inquest. At the inquest, defendant again defaulted in appearing, and three separate default judgments were awarded in favor of plaintiffs. Thereafter, defendant moved to vacate the default judgments, asserting that the court should not have entered them because plaintiffs had failed "to take proceedings for the entry of judgment within one year after the default," as required by CPLR 3215 (c). In opposition to the motion, plaintiffs' attorney alleged in his affirmation that he orally extended defendant's time to answer. Defendant did not refute this allegation. Rather, defendant argued, below and on appeal, that such an agreement was not enforceable. The court below denied defendant's motion to vacate the default judgments on the ground that defendant failed to establish both a meritorious defense to the action and a reasonable excuse for the default.

At the outset, we note that defendant failed to proffer an excuse for his default in opposing plaintiffs' motion. Moreover, defendant failed to establish that the default judgments were improperly entered.

Where a plaintiff fails to commence proceedings for the entry of judgment within one [*2]year after a default, the plaintiff must, inter alia, offer a reasonable excuse for the delay, in order to avoid dismissal of the complaint as abandoned pursuant to CPLR 3215 (c) (see County of Nassau v Chmela, 45 AD3d 722 [2007]). In the instant case, the affirmation of plaintiffs' counsel in support of the motion for entry of the default judgments provides that there was an oral understanding with defendant's insurance carrier to extend the time to answer (no date is given as to when the answer was to be served). In order for a purported stipulation extending defendant's time to answer to be given effect, it must have been in writing and signed by the parties, their attorneys, or reduced to the form of an order and entered (see CPLR 2104). However, a party is precluded from invoking CPLR 2104 to avoid an oral stipulation if it appears that the stipulation was made and the adverse party relied upon it (see Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 355 [2005]; Leemilt's Petroleum v Public Stor., 193 AD2d 650 [1993]).

In the case at bar, it is undisputed that there was an oral agreement between the attorneys for the parties extending, sine die, defendant's time to answer, which precluded plaintiffs from seeking a default judgment within the statutory period (see Manago v Giorlando, 143 AD2d 646 [1988]). Accordingly, defendant has failed to demonstrate that plaintiffs' excuse for their delay in entering the default judgments against him was unreasonable. Thus, the order denying defendant's motion to vacate the default judgments is affirmed.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: December 03, 2008