Dolin v. Passero-Scardetta Associates

110 A.D.2d 1051, 489 N.Y.S.2d 21, 1985 N.Y. App. Div. LEXIS 48927

Opinion

It is well settled that where, as here, 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, e.g., Gray v Great Southwest Fire Ins. Co., 93 AD2d 998; Matter of Nassau Ins. Co. [Franklin — Eden Transp. Sys.], 87 AD2d 594; Gohery v Spartan Concrete Corp., 85 AD2d 678, affd 56 NY2d 785; N & J Foods v Shopwell Plaza Corp., 63 AD2d 899; Witz v Renner Realty Corp., 55 AD2d 517; Coleman v Padgett, 35 AD2d 695; Turntables, Inc. v M.B. Plastics Corp., 33 AD2d 899; P.H.C., Inc. v Wolf, 24 AD2d 769; James v Powell, 24 AD2d 428). It is on that basis that we dismiss the appeal. Were we to address the merits, however, we would affirm (see, N & J Foods v Shopwell Plaza Corp., supra; Coleman v Padgett, supra). Defendants’ showing of excusable default and merit was sufficient to justify Special Term’s exercise of discretion to relieve defendants from the default “upon such terms as may be just” (CPLR 5015 [a]). (Appeal from order of Supreme Court, Monroe County, Davis, J. — vacate default judgment.) Present — Dillon, P. J., Doerr, Denman, Boomer and Schnepp, JJ.