Opinion
98-825 K C.
Decided February 1, 2000.
Appeal by Joseph Khezrie and 30 Graham Ave., Inc. from an order of the Civil Court, Kings County (S. Goodheartz, J.) dated June 1, 1998 denying their motions to dismiss and for leave to serve an amended answer and appeals by Joseph Khezrie from (1) a decision after trial dated September 25, 1998, (2) a final judgment entered September 30, 1998 awarding landlord possession and the sum of $256,496.15, and (3) a post-judgment order dated December 15, 1998 of said court (K. Yellen, J.) granting a motion by landlord to amend the final judgment to include an award of interest.
Appeals from order dated June 1, 1998, decision after trial dated September 25, 1998, and order dated December 15, 1998 unanimously dismissed.
Final judgment unanimously reversed without costs and petition dismissed as against appellant Khezrie.
PRESENT: ARONIN, J.P., SCHOLNICK and PATTERSON, JJ.
Inasmuch as the lease expressly permitted Khezrie to assign his interest and inasmuch as landlord did not object to Khezrie's assignment to the corporate respondent but instead accepted rent from the latter for years, landlord cannot now seek to disaffirm the assignment. Because there was no privity of estate between landlord and Khezrie subsequent to the assignment, Khezrie is not a proper party to a summary proceeding ( Radlog Realty Corp. v. Geiger, 254 App Div 352; Nerak Realty Corp. v. Cargo Packers, 17 Misc2d 930; S.Z.B. Corp. v. Weinman Wynn, 53 NYS2d 303). Accordingly, the petition must be dismissed as against him.
The appeal from the pre-trial order is dismissed on the ground that no appeal lies therefrom once a final judgment has been entered ( Matter of Aho, 39 NY2d 241). The appeal from the decision after trial is also dismissed on this ground and on the additional ground that no appeal lies from a decision. The appeal from the post-judgment order is dismissed as moot.
Aronin, J.P., and Scholnick, J., concur.
Patterson, J., concurs in a separate memorandum.
DECIDED
I concur in the reversal of the final judgment and dismissal of the petition as against appellant Khezrie for the reason stated in the majority opinion. However, I would also note that the court below improperly dismissed the petition as against the corporation. Nevertheless, since landlord has not taken an appeal, this court is without jurisdiction to disturb that determination.