Homestead Development Corp. v. Ayres

—Order unanimously modified on the law and as modified affirmed with costs to defendants in accordance with the following Memorandum: Supreme Court properly granted that part of plaintiffs motion for summary judgment dismissing the fifth affirmative defense in the answer. The contention that a complaint fails to state a cause of action is not properly asserted as an affirmative defense (see, Guglielmo v Roosevelt Hosp. Staff Hous. Co., 222 AD2d 403; Propoco, Inc. v Birnbaum, 157 AD2d 774, 775; Falk v MacMasters, 197 App Div 357, 362), and, in any event, the complaint alleges facts…