Dolin v. Passero-Scardetta Associates

It is well settled that where, as here, an order imposes costs on the moving party as a condition of granting the relief sought, the acceptance and retention of the costs by the adverse party operates as a waiver of the right to appeal (see, e.g., Gray v Great Southwest Fire Ins. Co., 93 AD2d 998; Matter of Nassau Ins. Co. [Franklin — Eden Transp. Sys.], 87 AD2d 594; Gohery v Spartan Concrete Corp., 85 AD2d 678, affd 56 NY2d 785; N & J Foods v Shopwell Plaza Corp., 63 AD2d 899; Witz v Renner Realty Corp., 55 AD2d 517; Coleman v Padgett, 35 AD2d 695; Turntables, Inc. v M.B. Plastics Corp., 33 AD2d 899; P.H.C., Inc. v Wolf, 24 AD2d 769; James v Powell, 24 AD2d 428). It is on that basis that we dismiss the appeal. Were we to address the merits, however, we would affirm (see, N & J Foods v Shopwell Plaza Corp., supra; Coleman v Padgett, supra). Defendants’ showing of excusable default and merit was sufficient to justify Special Term’s exercise of discretion to relieve defendants from the default “upon such terms as may be just” (CPLR 5015 [a]). (Appeal from order of Supreme Court, Monroe County, Davis, J. — vacate default judgment.) Present — Dillon, P. J., Doerr, Denman, Boomer and Schnepp, JJ.