Muchnick v. Alcamo Supply & Contracting Corp.

169 A.D.2d 711, 564 N.Y.S.2d 198, 1991 N.Y. App. Div. LEXIS 412

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 14, 1991
• Status: Published

Opinion

In an action to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Suffolk County (Luciano, J.), entered November 16, 1988, which, after a nonjury trial, is in favor of the plaintiff and against them in the principal sum of $17,754.55.

Ordered that the judgment is affirmed, with costs.

The defendants’ claim that the plaintiff lacked the capacity to sue on the contract is untimely. By failing to assert such a defense in a motion before the service of their answer or in the answer itself, they have waived any objection to the plaintiff’s standing (see, CPLR 3211 [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657; Erljur Assocs. v Weissman, 134 AD2d 321).

Moreover, the findings of fact by the trial court were not against the weight of the evidence (see, Strauf v Ettson Enters., 106 AD2d 737).

We find the defendants’ remaining contentions to be either unpreserved for appellate review or without merit. Thompson, J. P., Kunzeman, Lawrence and O’Brien, JJ., concur.