Shapiro v. McNeill, 92 A.D.2d 1092 (1983)
A stipulation in an action is not binding unless it is made in open court, contained in a writing subscribed by the party or his attorney, or reduced to the form of an order and entered.
Summary
This case addresses the requirements for a valid and binding stipulation between parties in a legal action. Plaintiff’s attorney sent defendant’s attorney a stipulation to extend the time to answer or move to dismiss. Plaintiff’s attorney modified the stipulation by striking the motion to dismiss clause and adding a clause admitting service and jurisdiction, and then returned the stipulation. Defendant then filed an answer including a defense that the court lacked personal jurisdiction. The New York Court of Appeals held that because the defendant did not sign the modified stipulation, it was not binding under CPLR 2104. Therefore, the defendant was not barred from including the jurisdictional defense in the answer.
Facts
Defendant’s attorney sent a proposed stipulation to Plaintiff’s attorney, seeking an extension of time for Defendant to file an answer or move to dismiss the complaint.
Plaintiff’s attorney modified the stipulation by:
(1) Striking out the provision allowing Defendant to make a motion to dismiss, and
(2) Adding a provision stating Defendant admitted the propriety of service and jurisdiction.
Plaintiff’s attorney then signed and returned the modified stipulation.
Defendant’s attorney filed an answer asserting lack of personal jurisdiction as an affirmative defense.
Procedural History
The trial court dismissed Plaintiff’s complaint based on lack of personal jurisdiction. The Appellate Division affirmed the dismissal. The New York Court of Appeals then reviewed the Appellate Division’s order.
Issue(s)
Whether the defendant, by relying on the beneficial terms of the proposed stipulation (extending time to answer), waived the defense of lack of personal jurisdiction, or should be estopped from asserting that defense, even though the stipulation was modified by the plaintiff and not signed by the defendant.
Holding
No, because the purported agreement did not amount to a valid stipulation since the defendant did not sign it as modified. Therefore, the defendant was not barred from including the jurisdictional defense in the answer.
Court’s Reasoning
The Court of Appeals relied on CPLR 2104, which dictates the requirements for a binding stipulation. CPLR 2104 states that a stipulation is only binding if it is: (1) made in open court between counsel, (2) contained in a writing subscribed by the party or his attorney, or (3) reduced to the form of an order and entered. Because the defendant did not sign the stipulation as modified by the plaintiff, the court found the stipulation not binding. The Court stated, “We conclude that the purported agreement did not amount to a valid stipulation upon which plaintiff could rely to preclude defendant’s assertion of the lack of jurisdiction or extend his time to answer. A stipulation concerning any matter in an action is not binding unless it is made in open court between counsel, contained in a writing subscribed by the party or his attorney, or reduced to the form of an order and entered (CPLR 2104). The claimed stipulation is not binding upon defendant, because he did not sign it as modified. Accordingly, there was no bar to inclusion of the jurisdictional defense in the answer.” The court also noted that although the defendant’s answer was untimely, the plaintiff never moved for a default judgment on that basis, meaning the plaintiff waived the untimeliness argument.