Schulman v. Levy Sonet & Siegel

276 A.D.2d 384, 714 N.Y.S.2d 676, 2000 N.Y. App. Div. LEXIS 10648

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 19, 2000
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County (Stephen Crane, J.), entered on or about December 29, 1999, which, in an action for dissolution of a law partnership, denied defendant partnership’s motion to dismiss, and granted plaintiff’s cross motion to restore the action to the calendar on condition that plaintiff pay defendant $3,000, unanimously dismissed, without costs.

Defendant waived its right to appeal by accepting, and depositing the $3,000 check tendered by plaintiff in compliance with the condition in" the order on appeal (see, N & J Foods v Shopwell Plaza Corp., 63 AD2d 899). It does not avail defendant to argue that the check was deposited into its escrow account, when defendant did not notify plaintiff of such deposit until after the appeal was filed and plaintiff objected thereto (see, Carmichael v General Elec. Co., 102 AD2d 838, 839-840). In any event, were we to reach the merits, we would affirm restoration of the action upon the stated condition as a proper exercise of discretion. Concur — Rosenberger, J. P., Williams, Wallach, Saxe and Buckley, JJ.