Balducci v. Schuth Enterprises, Inc.

Appellate Division of the Supreme Court of New York

Balducci v. Schuth Enterprises, Inc.

166 A.D.2d 900, 561 N.Y.S.2d 664, 1990 N.Y. App. Div. LEXIS 12163

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 5, 1990

StatusPublished

This text of 166 A.D.2d 900 (Balducci v. Schuth Enterprises, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Balducci v. Schuth Enterprises, Inc., 166 A.D.2d 900, 561 N.Y.S.2d 664, 1990 N.Y. App. Div. LEXIS 12163 (N.Y. Ct. App. 1990).

Pincite

Opinion

Appeal unanimously dismissed without costs. Memorandum: Supreme Court granted defendants’ motion to vacate a default judgment "contingent upon” defendants’ payment of the bill of costs in the amount of $323.50. At oral argument, the parties stipulated that, after entry of the order opening the default, that sum was paid by defendants’ counsel and received and retained by plaintiff’s counsel. It is well settled that, where an order imposes costs on the moving party as a condition of granting the relief sought, the acceptance and retention of the costs by the adverse party operates as a [901]*901waiver of the right to appeal (see, Dolin v Passero-Scardetta Assocs., 110 AD2d 1051, and cases cited therein). The appeal must, therefore, be dismissed. (Appeal from order of Supreme Court, Monroe County, Willis, J.—vacate default judgment.) Present—Dillon, P. J., Callahan, Boomer, Green and Balio, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal unanimously dismissed without costs. Memorandum: Supreme Court granted defendants’ motion to vacate a default judgment "contingent upon” defendants’ payment of the bill of costs in the amount of $323.50. At oral argument, the parties stipulated that, after entry of the order opening the default, that sum was paid by defendants’ counsel and received and retained by plaintiff’s counsel. It is well settled that, where an order imposes costs on the moving party as a condition of granting the relief sought, the acceptance and retention of the costs by the adverse party operates as a [901]*901waiver of the right to appeal (see, Dolin v Passero-Scardetta Assocs., 110 AD2d 1051, and cases cited therein). The appeal must, therefore, be dismissed. (Appeal from order of Supreme Court, Monroe County, Willis, J.—vacate default judgment.) Present—Dillon, P. J., Callahan, Boomer, Green and Balio, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

166 A.D.2d 900, 561 N.Y.S.2d 664, 1990 N.Y. App. Div. LEXIS 12163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balducci-v-schuth-enterprises-inc-nyappdiv-1990.

Opinion

Related

Cite This Page — Counsel Stack