Opinion
570055/05.
Decided July 13, 2005.
Plaintiff appeals from an order of the Civil Court of the City of New York, Bronx County, dated August 3, 2004 (Julia I. Rodriguez, J.) which granted a motion by defendants Boparai and Singh to vacate a default judgment on condition that defendants' counsel pay plaintiff's counsel $700.
Appeal from order dated August 3, 2004 (Julia I. Rodriguez, J.) dismissed, without costs.
Before: PRESENT: HON. WILLIAM P. McCOOE, J.P., HON. PHYLLIS GANGEL-JACOB, HON. MARTIN SCHOENFELD, Justices.
Subsequent to the entry of the order on appeal, plaintiff's counsel accepted and deposited a $700 check tendered by defense counsel in compliance with the condition set out in the order. Plaintiff's acceptance and retention of the costs awarded by the motion court operates as a waiver of the right to appeal ( see Schulman v. Levy Sonet Siegel, 276 AD2d 384; NJ Foods v. Shopwell Plaza Corp., 63 AD2d 899). In any event, were we to reach the merits, we would affirm the conditional grant of vacatur relief as an appropriate exercise of discretion.
This constitutes the decision and order of the court.