Opinion
13124-13125 Index No. 159303/18 Case No. 2020-01458 2020-01456
02-16-2021
In the Matter of CUCS HDFC et al., Petitioners–Respondents, v. Clifford S. AYMES, Respondent–Appellant.
Clifford Aymes, appellant pro se. Klein Slowik PLLC, New York (Christopher M. Slowik of counsel), and Henry H. Korn, PLLC, New York (Henry H. Korn of counsel), for respondents,
Clifford Aymes, appellant pro se.
Klein Slowik PLLC, New York (Christopher M. Slowik of counsel), and Henry H. Korn, PLLC, New York (Henry H. Korn of counsel), for respondents,
Gische, J.P., Moulton, Gonza´lez, Scarpulla, JJ.
Appeal from interim order, Supreme Court, New York County (Melissa A. Crane, J.), entered July 23, 2019, which, upon petitioners’ emergency application, ordered respondent to allow petitioners access to his property to install overhead protection, unanimously dismissed, with costs. Orders, same court and Justice, entered December 9, 2019, which denied respondent's motions for summary judgment on his counterclaim for an injunction against petitioners’ construction of a proposed building, unanimously affirmed, with costs.
The interim order from which respondent purports to appeal is not appealable as of right (see CPLR 5701[a][2] ; Carter v. Isabella Geriatric Ctr., Inc., 60 A.D.3d 520, 875 N.Y.S.2d 73 [1st Dept. 2009] ). If we were to review it, we would conclude that the court providently exercised its discretion in granting petitioners a license pursuant to RPAPL 881 to erect a sidewalk shed over portions of respondent's property as overhead protection.
Petitioners waived any defense that respondent lacks standing or that this is an improper forum in which to assert his counterclaim by failing either to raise such affirmative defenses in their reply to the counterclaim or to move to dismiss the counterclaim on those grounds ( CPLR 404[b] ; 3211[a][3], [6]; [e]; Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 280–281, 820 N.Y.S.2d 2 [1st Dept. 2006], appeal dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] ). However, the court properly denied as improper successive summary judgment motions respondent's motions in sequence 5 and 6 for summary judgment on his counterclaim based on his contention that petitioners’ building violates the Zoning Resolution of the City of New York, since respondent had previously sought summary judgment on his claim that petitioners’ building violates the Zoning Resolution (see Amill v. Lawrence Ruben Co., Inc., 117 A.D.3d 433, 985 N.Y.S.2d 52 [1st Dept. 2014] ; Phoenix Four v. Albertini, 245 A.D.2d 166, 665 N.Y.S.2d 893 [1st Dept. 1997] ).