the same fashion, the court in the instant case finds that failure to allege noncompliance with the condition precedent set forth in RPAPL 711 (subd 2) results in a waiver of that defense.
As to the alternative relief requested by respondent, the court cannot grant respondent the right to proceed as a poor person on any appeal. Leave to appeal as a poor person must be made to the appellate tribunal in which appeal is to be taken. (2 Weinstein-Korn-Miller, NY Civ Prac, par 1101.2.) Respondent may, if so advised, file notice of appeal pursuant to the CPLR within the appropriate time limit set forth. Respondent’s motion for a continuance of a stay against the petitioner is denied. Respondent’s motion for a continuance of a stay against the New York City Department of Sanitation is granted pending hearing and determination of any appeal and/or respondent’s voluntary retaking of the property from said department. A copy of this order shall be served upon the appropriate New York City Department of Sanitation representatives within seven days from date of entry of this order.