STEPPING STONES ASSOCIATES v. SEYMOUR (2000)

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[1];  Lipkis v. Gilmour, 158 Misc.2d 609, 606 N.Y.S.2d 503;  Eversman v. Collodo, 88 Misc.2d 86, 388 N.Y.S.2d 542).   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, 67 A.D.2d 1115, 409 N.Y.S.2d 787, affd. 48 N.Y.2d 693, 422 N.Y.S.2d 58, 397 N.E.2d 748).

MEMORANDUM.