Opinion
April 29, 1998
(Appeal from Order of Supreme Court, Allegany County, Feeman, Jr., J. — Dismiss Pleading.)
Present — Pine, J.P., Lawton, Hayes, Wisner and Boehm, JJ.
Appeal unanimously dismissed without costs. Memorandum: Supreme Court's denial of defendant's motion to dismiss the complaint pursuant to CPLR 3216 for failure to prosecute was conditioned upon plaintiffs' payment to defendant of $250 for costs within 30 days after service of the order with notice of entry. Plaintiffs made timely payment to defendant's attorney, who deposited the check and retained the money. Defendant thereby waived its right to appeal ( see, Dolin v. Passero-Scardetta Assocs., 110 A.D.2d 1051; see also, Reyes-Dobles v. Chaudhry, 176 A.D.2d 1240).