Appeal by landlord and cross appeal by tenants from an order of the Civil Court of the City of New York, Queens County (Anne Katz, J.), dated December 10, 2004, and appeal by landlord from an order of the same court, dated May 5, 2005. The order dated December 10, 2004 denied tenants' motion for a traverse hearing and discovery, and denied landlord's cross motion for summary judgment awarding possession to landlord and dismissing tenants' counterclaims. The order dated May 5, 2005, insofar

as appealed from as limited by landlord's brief, upon granting landlord's motion for reargument and modifying its earlier decision by dismissing tenants' second and third counterclaims, otherwise adhered to its prior determination.

Appeal and cross appeal from order dated December 10, 2004 dismissed.

Order dated May 5, 2005, insofar as appealed from, affirmed without costs.

Landlord instituted this nonpayment proceeding seeking possession of the subject premises together with rent arrears from August 1, 2003 through March 1, 2004. In a verified answer, tenants asserted a general denial and affirmative defenses. In addition thereto, tenants counterclaimed for, inter alia, damages arising out of landlord's alleged unlawful refusal to allow tenants' subtenant access to the premises. By order dated December 10, 2004, the court denied a [*2]motion by tenants for discovery and a traverse hearing, and denied a cross motion by landlord for summary judgment awarding possession to landlord and dismissing tenants' counterclaims. Subsequently, the court, by order dated May 5, 2005, granted landlord's motion for reargument and, upon reargument, dismissed tenants' second and third counterclaims and otherwise adhered to its original determination.

At the outset, we note that tenants have raised no issue with respect to their cross appeal from the December 10, 2004 order, which cross appeal is therefore dismissed as abandoned. In addition, the portion of the December 10, 2004 order from which landlord appeals was superseded by the order dated May 5, 2005, and, thus, landlord's appeal from said portion of the order is likewise dismissed.

Tenants alleged both in their first counterclaim and in their papers in opposition to landlord's motion for summary judgment that landlord, on July 11, 2003, unlawfully refused access to the premises to their sublessee. When a paramount landlord prevents his tenant's subtenant from taking possession, his actions constitute an eviction of his own tenant (see O'Connell v Sugar Products Co., 114 Misc 540 [App Term, 1st Dept 1921]; see also Full House Foods, Inc. v 33rd St. Enters. [In re Full House Foods, Inc.], 279 BR 71 [Bankr SD NY 2002]; 2 Dolan, Rasch's Landlord and Tenant—Summary Proceedings § 28:19, at 338 [4th ed]). An actual eviction is a defense in a nonpayment summary proceeding (Barash v Pennsylvania Term Real Estate Corp., 26 NY2d 77, 83 [1970]). Since a motion for summary judgment may be defeated by an unpleaded defense so long as the opposing party is not taken by surprise (Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574 [1995]), and since no surprise can be claimed here inasmuch as the basis for the claim of actual eviction was set forth in the first counterclaim, tenants have set forth sufficient factual allegations to demonstrate the existence of a genuine triable issue of fact. Moreover, tenants' first counterclaim for damages deriving from the denial of access to tenants' subtenant will involve the same evidence as tenants' defense and is inextricably intertwined therewith. Thus, despite the waiver of counterclaims clause in the lease, it is properly before the court (see All 4 Sports & Fitness v Hamilton, Kane, Martin Enters., 22 AD3d 512 [2005]; Sutton Fifty-Six Co. v Garrison, 93 AD2d 720 [1983]).

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in part and concurs in part in a separate memorandum.

Weston Patterson, J., dissents in part and concurs in part, and votes to modify the order dated May 5, 2005, insofar as appealed from, by granting landlord's motion for summary judgment and dismissing tenants' first counterclaim in the following memorandum:

In my view, tenants' submissions fall far short of raising a triable issue of fact. Contrary to the majority's opinion, tenants never opposed landlord's cross motion for summary judgment and, upon searching the record, I find nothing to rebut landlord's prima facie case. Although tenants' answer is verified, it asserts nothing more than a general denial, which is insufficient to raise an issue of fact (see Stern v Stern, 87 AD2d [1982]). Also insufficient is tenants' first counterclaim, which alleges that the superintendent, "acting upon orders from landlord," refused the sublessee access to the apartment on July 11, 2003. Tenants' allegation is neither based on personal knowledge, nor is it supported by evidentiary proof (see Young v Fleary, 226 AD2d 454 [1996]). In the absence of such proof, I cannot agree that tenants' counterclaim creates an [*3]issue of fact sufficient to defeat landlord's cross motion for summary judgment.