Balducci v. Schuth Enterprises, Inc.

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

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 waiver 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.