Schulman v. Levy Sonet & Siegel

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 ac*385count, 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.