Opinion
May 26, 2000.
Greenspan Greenspan, White Plains (Michael E. Greenspan of counsel), for appellant.
Finger Finger, White Plains (Carl L. Finger of counsel), for respondent.
PRESENT: DiPAOLA, P.J., FLOYD and PALELLA, JJ.
DECIDED
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; 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 N.Y. 25, 27), and a judgment entered upon such a default is appealable (see, e.g., Malvin v. Schwartz, 65 A.D.2d 769, affd 48 N.Y.2d 693)