Mt. Sinai Medical Center v. Empire Blue Cross & Blue Shield

—Order, Supreme Court, New York County (Barry Cozier, J.), entered October 20, 1999, which, in an action by plaintiff *208hospitals against defendant health insurer challenging the latter’s calculation of reimbursement rates for ambulatory surgery services provided to defendant’s subscribers, dismissed the complaint on the ground of another action pending, unanimously affirmed, without costs.

We reject plaintiffs’ claim that defendant’s CPLR 3211 (a) (4) defense was waived as a matter of law under CPLR 3211 (e) because it was not asserted in defendant’s answer. Defendant’s second affirmative…