Philadelphia Indemnity Insurance v. Community Assistants Transportation, Inc.

249 A.D.2d 458, 671 N.Y.S.2d 314, 1998 N.Y. App. Div. LEXIS 4234

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1998
• Status: Published

Opinion

—In an action to recover insurance premiums, the plaintiff appeals from an order of the Supreme Court, Kings County (Held, J.), dated September 17, 1997, which granted the defendants’ motion to vacate an order of the same court, dated April 16, 1996, granting the plaintiff’s motion for leave to enter a judgment against the defendants upon their default in answering the complaint. The plaintiff’s notice of appeal from the decision dated September 4, 1996, is deemed a premature notice of appeal from the order (see, CPLR 5520 [c]).

Ordered that the appeal is dismissed, with costs.

The defendants’ assertion that the $750 sanction imposed by the court as a condition for vacating their default has been timely paid was not disputed by the plaintiff. It is well settled that when costs are imposed as a condition for granting relief, a party’s “ ‘ “acceptance of the costs will be held to waive the right to appeal” ’ ” (Harris v Resnikoff, 118 AD2d 622, 623; see also, Guillen v 652 Broadway Corp., 168 AD2d 486; Chirkis v Hutton & Co., 155 AD2d 411; Campion v Alert Coach Lines, 137 AD2d 647). Santucci, J. P., Joy, Friedmann and McGinity, JJ., concur.