VOLIN v. CITY BEACH CATERING CORPORATION

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

Contrary to the plaintiff's 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 A.D.2d 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.