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