Opinion
2008-477 Q C.
Decided December 3, 2008.
Appeal from an order of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), entered December 19, 2007. The order, insofar as appealed from as limited by the brief, denied undertenant Teddy Moore's motion to, inter alia, dismiss the petition as against him with prejudice, to enter a default judgment against landlords for failure to answer his counterclaim and his demand for interrogatories and written depositions, and to award him $60,661 based upon landlords' unjust enrichment, and granted landlords' cross motion to, inter alia, dismiss undertenant Teddy Moore's jury demand, counterclaim, and defenses.
Appeal from so much of the order as denied undertenant Teddy Moore's motion to dismiss the petition as against him dismissed.
Order, insofar as appealed from and insofar as reviewed, affirmed without costs.
PRESENT: PESCE, P.J., WESTON PATTERSON and GOLIA, JJ.
In this holdover proceeding, undertenant Teddy Moore (appellant) appeals from an order entered December 19, 2007 which, inter alia, denied his motion to dismiss the petition as against him. It is undisputed that, subsequent to the entry of the order appealed from, so much of the petition as was against him was dismissed without prejudice by the trial court (Elizabeth J. Yalin Tao, J.), by order dated February 1, 2008, upon appellant's motion to dismiss made after landlords' case, based, inter alia, on the fact that landlords had commenced a subsequent proceeding against appellant predicated upon a licensee allegation. In view of the dismissal of the petition as against appellant at trial, he is not aggrieved by that portion of the order entered December 19, 2007 which denied his motion to dismiss the petition as against him. Accordingly, his appeal from that portion of the order is dismissed ( see CPLR 5511).
The remainder of the order, insofar as appealed from and insofar as reviewed, which denied the branches of appellant's motion seeking to enter a default judgment against landlords for failure to answer his counterclaim and his demand for interrogatories and written depositions, and to award him $60,661 based upon landlords' unjust enrichment, and granted landlords' cross motion to, inter alia, dismiss appellant's jury demand, counterclaim, and defenses, is affirmed. The lease contained enforceable provisions waiving the right to a jury trial and the right to interpose counterclaims ( see generally 3 Dolan, Rasch's Landlord and Tenant — Summary Proceedings § 43.40, at 142; § 44.12, at 156 [4th ed]), and appellant's remaining contentions on appeal are equally without merit.
Pesce, P.J., Weston Patterson and Golia, JJ., concur.