Opinion
April 5, 1985
Appeal from the Supreme Court, Monroe County, Davis, J.
Present — Dillon, P.J., Doerr, Denman, Boomer and Schnepp, JJ.
Appeal unanimously dismissed, without costs. Memorandum: Special Term's order vacating a default judgment was conditioned upon payment by defendants to plaintiffs of $1,900 for attorney's fees and $359.80 for disbursements. The order was entered on June 11, 1984 and on the following day plaintiffs' counsel received from defendants' counsel, and subsequently deposited and retained, a check in the sum of $2,259.80. Plaintiffs' notice of appeal was filed and served on June 25, 1984.
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 A.D.2d 998; Matter of Nassau Ins. Co. [ Franklin — Eden Transp. Sys.], 87 A.D.2d 594; Gohery v. Spartan Concrete Corp., 85 A.D.2d 678, affd 56 N.Y.2d 785; N J Foods v. Shopwell Plaza Corp., 63 A.D.2d 899; Witz v. Renner Realty Corp., 55 A.D.2d 517; Coleman v. Padgett, 35 A.D.2d 695; Turntables, Inc. v. M.B. Plastics Corp., 33 A.D.2d 899; P.H.C., Inc. v. Wolf, 24 A.D.2d 769; James v. Powell, 24 A.D.2d 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]).