Opinion
January 15, 1998
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
Since Hawkins' cross claim did not demand an answer, its allegations are to be deemed denied or avoided (CPLR 3011), and, accordingly, the granting of Hawkins' motion for summary judgment on his cross claim was not premature simply because a formal answer thereto was never interposed. On the merits, the motion court properly determined that DMCII was bound by Stipulation No. 3, as amended by Stipulation No. 4, because its agent signed Stipulation No. 4, which amended and expressly referred to the portion of Stipulation No. 3 that obligated DMCII to pay Hawkins in three separate installments ( see, Di Guglielmo v. Peixoto, 134 A.D.2d 320; Liberty Mgt. Constr. v. Fifth Ave. Sixty-Sixth St. Corp., 208 A.D.2d 73; see also, Fox Co. v. Kaufman Org., 74 N.Y.2d 136, 140-141). Appellant's argument concerning its agent's limited intent and purpose in signing Stipulation No. 4 is unavailing ( see, Fairchild Publs. Div. v. Rosston, Kremer Slawter, 154 Misc.2d 27), and its claim of an oral waiver by Hawkins lacks the support of first-hand evidentiary details ( see, Fink, Weinberger, Fredman, Berman Lowell v. Petrides, 80 A.D.2d 781, 782, appeal dismissed 53 N.Y.2d 1028). We decline to address appellant's remaining claims since they are improperly raised for the first time on appeal. However, we amend the judgment so as to clarify that DMCII as an entity, and not Dorothy McCarthy individually, is the party liable, there being no substantial rights of other parties affected by such an amendment (CPLR 5019 [a]; see, Poughkeepsie Sav. Bank v. Maplewood Land Dev. Co., 210 A.D.2d 606).
Concur — Sullivan, J.P., Rosenberger, Andrias and Colabella, JJ.