Low v. Peach

179 A.D.2d 1094, 579 N.Y.S.2d 506, 1992 N.Y. App. Div. LEXIS 2560

Opinion

Memorandum: By cashing defendants’ check for attorney’s fees and costs, plaintiffs waived their right to appeal from the order granting relief from a default judgment. The acceptance by the opposing party of costs imposed as a condition of granting the relief sought operates as a waiver of the right to appeal (Dolin v Passero-Scardetta Assocs., 110 AD2d 1051). Here, the court conditioned the right to enter the order upon the payment of attorney’s fees and costs. Thus, the relief was granted conditionally because the order did not become effective until it was entered (see, 2 Carmody-Wait 2d, NY Prac § 8:102, at 122; see also, Wilcox v National Shoe & Leather Bank, 67 App Div 466). Present — Callahan, J. P., Boomer, Green, Pine and Davis, JJ. (Order entered Jan. 17, 1992.)