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ROL Realty Company LLC, Petitioner-Landlord-Appellant v. Mark Robert Gordon

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


November 29, 2010

ROL REALTY COMPANY LLC, PETITIONER-LANDLORD-APPELLANT,
v.
MARK ROBERT GORDON, RESPONDENT-TENANT-RESPONDENT, -AND- "JOHN DOE" AND "JANE DOE," RESPONDENTS.

Landlord, as limited by its briefs, appeals from (1) those portions of an order of the Civil Court of the City of New York, New York County (Timmie Erin Elsner, J.), dated November 12, 2009, which denied landlord's motion to strike tenant's second affirmative defense alleging improper service of process and granted tenant's cross motion to the extent that it sought a traverse hearing, and (2) an order (same court and Judge), dated March 18, 2010, which granted landlord's motion for reargument of the prior order to the extent that it failed to dismiss the second affirmative defense and directed a traverse hearing, and, on reargument, adhered to the prior order.

Per curiam.

ROL Realty Co. LLC v. Gordon

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 29, 2010

PRESENT: Shulman, J.P., McKeon, Schoenfeld, JJ

Order (Timmie Erin Elsner, J.), dated November 12, 2009, insofar as appealed from, reversed, with $10 costs, landlord's motion to dismiss the second affirmative defense granted, tenant's cross motion for a traverse denied, and matter remanded to the Civil Court for further proceedings. Appeal from order (same court), entered March 18, 2010, dismissed as academic.

In this nonprimary residence holdover summary proceeding, tenant waived his second affirmative defense objecting to personal jurisdiction on the ground of improper service by asserting several counterclaims unrelated to the claims in the petition (see Textile Tech. Exch., Inc. v Davis, 81 NY2d 56 [1993]; Friedman v Eisner, 23 Misc 3d 136[A], 2009 NY Slip Op 50817[U] [2009]; 537 Greenwich LLC v Chista, Inc.,19 Misc 3d 1133[A], 2008 NY Slip Op 50989[U] [2008]). Tenant did not revive his jurisdictional objection by stipulating to withdraw two unrelated counterclaims (one for intentional infliction of emotional distress, the other for property damage caused by negligence), as the waiver occurred simultaneously with interposition of the unrelated counterclaims (see generally Textile Tech. Exch., supra; cf. Sullivan v Troser Mgt., Inc., 75 AD3d 1059 [2010]; Anesthesia Assocs. of Mt. Kisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481 [2009]; Willis Re Inc. v Hudson, 29 AD3d 489 [2006]). Moreover, other unrelated counterclaims were not withdrawn, such as those for harassment, discrimination and overcharge, and remain extant.

We have considered tenant's remaining arguments, including tenant's contention that the November 12, 2009 order is not appealable (see General Elec. Co. v Rabin,177 AD2d 354 [1991]; DHPD v 532-536 W. 143rd St. Realty Corp,8 Misc 3d 136[A], 2005 NY Slip Op 51246[U] [2005]), and find them lacking in merit. THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: November 29, 2010

20101129

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