Opinion
December 10, 1990
Appeal from the Supreme Court, Kings County (Krausman, J.).
Ordered that the appeal by L R Administration Services, Inc., is dismissed, and it is further,
Ordered that the order is affirmed insofar as appealed from by 652 Broadway Corp., and it is further,
Ordered that the plaintiff is awarded one bill of costs, payable by the appellants.
The Supreme Court did not improvidently exercise its discretion by granting the plaintiff's motion to vacate a prior order dated April 28, 1989, which had dismissed the complaint against the appellant 652 Broadway Corp., on condition that the plaintiff's counsel pay appellant's counsel the sum of $500 (see, CPLR 5015 [a]; see, e.g., Stark v. Marine Power Light Co., 99 A.D.2d 753; N J Foods v. Shopwell Plaza Corp., 63 A.D.2d 899, 900).
The appeal by L R Administration Services, Inc. is dismissed because its counsel's conduct in depositing in his bank account the $500 check from the plaintiff's counsel, without restriction, constituted a waiver of the right to appeal from the conditional order (see, Chirkis v. Hutton Co., 155 A.D.2d 411; Campion v. Alert Coach Lines, 137 A.D.2d 647; Carmichael v. General Elec. Co., 102 A.D.2d 838, 839-840). The mere retention of the $500 check by counsel for 652 Broadway Corp., without depositing it for collection, does not bar the appeal by 652 Broadway Corp. (see, Carmichael v. General Elec. Co., supra, at 839). Lawrence, J.P., Sullivan, Rosenblatt and Miller, JJ., concur.