Volin v. City Beach Catering Corp.

In a negligence action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Hurowitz, J.), dated August 17, 1988, as, upon reargument, adhered to its prior order, dated May 27, 1988, denying his motion for leave to enter a default judgment.

Ordered that the order is affirmed insofar as appealed from, with costs.

*584Contrary to the plaintiffs contention, we find that the court properly denied his motion for leave to enter a default judgment (see, CPLR 3215 [a]). While the record is inconclusive as to whether a formal stipulation extending the defendant’s time to answer was ever executed, it is clear that such a stipulation was made, and that the parties relied upon it (see, La Marque v North Shore Univ. Hosp., 120 AD2d 572). Moreover, the plaintiff waived any claim that the defendant had defaulted by accepting the defendant’s answer, and by accepting and responding to the defendant’s discovery demands. Bracken, J. P., Kunzeman, Eiber and O’Brien, JJ., concur.