Lance International, Inc. v. First National City Bank
Appellate Division of the Supreme Court of the State of New York
1Opinion of the Court
Contrary to defendant’s contention, its defense is that plaintiff lacks capacity to sue, not that the court lacks subject matter jurisdiction (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279-280 [2006], appeal dismissed 8 NY3d 837 [2007]). Contrary to plaintiffs contention, Civil Court did not raise the issue of lack of capacity sua sponte.
While a defense that a party lacks capacity to sue (see CPLR 3211 [a] [3]) is waived if not raised in a pre-answer motion or in a responsive pleading (see CPLR 3211 [e]), plaintiffs lack of capacity did not arise until after joinder of issue, and…
2Cases cited9 opinions
- Security Pacific National Bank v. EvansAppellate Division of the Supreme Court of the State of New York · 2006
- Rogoff v. San Juan Racing Ass'n, Inc.New York Court of Appeals · 1981
- Spiegelberg v. GomezNew York Court of Appeals · 1978
- George Strokes Electrical & Plumbing, Inc. v. DyeAppellate Division of the Supreme Court of the State of New York · 1997
- Williams v. PeraltaAppellate Division of the Supreme Court of the State of New York · 2007
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