Stepping Stones Associates v. Seymour

184 Misc. 2d 990, 712 N.Y.S.2d 266, 2000 N.Y. Misc. LEXIS 314

Opinion

OPINION OF THE COURT

Memorandum.

Final judgment unanimously reversed without costs and matter remanded to the court below for further proceedings.

The City Court erred in denying tenant a trial and in entering judgment against him based upon his default in making a court-ordered deposit (RPAPL 745 [1]; Lipkis v Gilmour, 158 Misc 2d 609; Eversman v Collodo, 88 Misc 2d 86). The final judgment, although entered upon tenant’s “default” in making the court-ordered deposit, is nevertheless directly appealable. A default in making a payment is not an acquiescence within the meaning of the rule that a defaulting party acquiesces in the entry of the order or judgment (Flake v Van Wagenen, 54 NY 25, 27), and a judgment entered upon such a default is appealable (see, e.g., Malvin v Schwartz, 65 AD2d 769, affd 48 NY2d 693).

DiPaola, P. J., Floyd and Palella, JJ., concur.