STEPPING STONES ASSOCIATES v. SEYMOUR (2000)

Supreme Court, Appellate Term, New York.

STEPPING STONES ASSOCIATES, Respondent, v. Joseph SEYMOUR, Appellant.

Decided: May 26, 2000

PRESENT: DiPAOLA, P.J., FLOYD and PALELLA, JJ.

Greenspan & Greenspan, White Plains (Michael E. Greenspan of counsel), for appellant. Finger & Finger, White Plains (Carl L. Finger of counsel), for respondent.

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.

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