Schlossberg v. Varjabedian

19 A.D.3d 171, 795 N.Y.S.2d 891, 2005 N.Y. App. Div. LEXIS 6124

Opinion

Appeal from order, Supreme Court, New York County (Edward H. Lehner, J.), entered September 21, 2004, which granted defendant-respondent’s motion to vacate her default in opposing plaintiffs motion to strike her answer, upon condition that defendant pay plaintiff $250, unanimously dismissed, without costs.

Plaintiff waived her right to appeal by accepting and depositing the $250 check tendered by defendant in compliance with the condition in the order on appeal (Schulman v Levy Sonet & Siegel, 276 AD2d 384 [2000]). In any event, were we to reach the merits, we would affirm reinstatement of the answer upon the stated condition as a proper exercise of discretion. Concur— Mazzarelli, J.P., Andrias, Saxe, Marlow and Sullivan, JJ.