Dolin v. Passero-Scardetta Associates

Appellate Division of the Supreme Court of New York

Dolin v. Passero-Scardetta Associates

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

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

DecidedApril 5, 1985

StatusPublished

Cited by8 cases

This text of 110 A.D.2d 1051 (Dolin v. Passero-Scardetta Associates) 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.

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Dolin v. Passero-Scardetta Associates, 110 A.D.2d 1051, 489 N.Y.S.2d 21, 1985 N.Y. App. Div. LEXIS 48927 (N.Y. Ct. App. 1985).

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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.

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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.

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Bluebook (online)

110 A.D.2d 1051, 489 N.Y.S.2d 21, 1985 N.Y. App. Div. LEXIS 48927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dolin-v-passero-scardetta-associates-nyappdiv-1985.

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