Schlossberg v. Varjabedian

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.