Chirkis v. E. F. Hutton & Co.

— In an action, inter alla, to recover [412] damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Lama, J.), entered December 14, 1988, which, inter alla, denied the plaintiff’s motion for leave to renew and adhered to the original determination in an order entered March 22, 1988, which granted the defendant’s motion to vacate its default in appearing, upon condition that it pay $250 to the plaintiff. Ordered that the appeal is dismissed, without costs or disbursements. The plaintiff waived her right to a review of the propriety of the order entered March 22, 1988, either by appeal or a motion for leave to renew, when she accepted the $250 sanction imposed by the court as a condition for granting the relief requested by the defendant (see, Carmichael v General Elec. Co., 102 AD2d 838; N & J Foods v Shopwell Plaza Corp., 63 AD2d 899; see also, Scharlack v Richmond Mem. Hosp., 127 AD2d 580; see generally, 10 Carmody-Wait 2d, NY Prac §§ 70:92, 70:95; Annotation, Right Of Appeal From Judgment Or Decree As Affected By Acceptance Of Benefit Thereunder, 169 ALR 985). The plaintiff may "not secure the fruits of an order and at the same time seek a review of it” (Carmichael v General Elec. Co., supra, at 839). Kunzeman, J. P., Rubin, Harwood and Balletta, JJ., concur.