The record reflects proper service of the notices of default and termination. The affirmative defense challenging the manner of service of the summons and complaint was waived when defendant failed to specify this ground in his subsequent motion to dismiss (CPLR 3211[e]).
Defendant is barred by collateral estoppel and res judicata from seeking to compel plaintiff to appear for pretrial examination for the purpose of trying to verify his right to sublet, because this issue has already been decided in prior litigation, viz., Tsabbar v. Auld ( 276 A.D.2d 442; 289 A.D.2d 115, lv denied 98 N.Y.2d 613) ( see Tsabbar v. Delena, 300 A.D.2d 196, 197, lv denied 100 N.Y.2d 508). Likewise, these doctrines bar defendant's assertions that he was not in breach of the lease by having an employee in his office one day a week, and that the court erred in granting plaintiff's cross motion because of disparate treatment and questions of fact ( Tsabbar v. Delena, supra). Moreover, since defendant's proprietary lease terminated long before plaintiff commenced the instant ejectment action, the IAS court was powerless to revive the expired lease by evaluating the underlying dispute ( see Graubard Mollen Horowitz Pomeranz Shapiro v. 600 Third Ave. Assoc., 93 N.Y.2d 508, 513).
We have considered defendant's remaining claims and find them without merit.
Motion seeking leave to enlarge record denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.