Opinion
2004-1025 K C.
Decided December 5, 2005.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), dated May 21, 2004. The order conditionally granted a motion by tenants and undertenants to be restored to possession.
Appeal unanimously dismissed.
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ.
By accepting the benefit of the order appealed from, landlord waived its right to appeal therefrom ( Cohen v. Cohen, 3 NY2d 339; Crystal Ridge Assoc. v. Pascal, 2003 NY Slip Op 50669[U] [App Term, 2d 11th Jud Dists]). We note, however, that were the appeal properly before us, we would affirm because, on the record presented, any default under the stipulation was not chargeable to tenants since landlord's agent frustrated their attempts to make timely payment.