Opinion
February 25, 1985
Appeal from the Supreme Court, Queens County (Lerner, J.).
Order affirmed, with costs.
It is well established that in order for a party to be relieved of a judgment or order on the ground of excusable default (CPLR 5015 [a] [1]) the party must establish that there is a reasonable excuse for the delay and there exists a meritorious claim or defense ( Weber v Victory Mem. Hosp., 98 A.D.2d 719; Passalacqua v Banat, 103 A.D.2d 769). In the case at bar, defendants' counsel averred that the 10-day delay in serving an answer was due solely to their reliance upon the oral assurance by plaintiffs' counsel that a late answer would be accepted. While an extension of time to answer, to be binding, must be in writing and subscribed by the party to be charged (CPLR 2104), we find that defendants' counsel acted reasonably in relying upon the oral assurance of opposing counsel permitting the service of a late answer ( Vargas v City of New York, 97 A.D.2d 379). Admittedly, the answer which was served by defendants 10 days after the expiration of the statutory answering period was defective because it was not properly verified. In their letter which accompanied the answer, defendants informed plaintiffs' counsel that in order to expedite matters they would forward the verification separately. A properly verified answer was eventually served approximately two weeks later. In view of the defendants' goodfaith intention to defend the action as well as the fact that they were not in default for a substantial period of time, we conclude that defendants' delay was excusable ( see, Stolpiec v Wiener, 100 A.D.2d 931).
Next, we find that the affidavits of merit submitted by the defendants were sufficient to raise several potentially meritorious defenses to plaintiffs' action. Moreover, contrary to plaintiffs' position, the affidavits do not constitute an admission of liability on the part of defendants. While defendants concede the presence of the toxic chemical chlordane in plaintiff's home, they unequivocally deny any responsibility for the cause of the hazardous condition.
Thus, under the circumstances of this case, it is clear that Trial Term did not abuse its discretion in vacating the default. Titone, J.P., O'Connor, Lawrence and Eiber, JJ., concur.