Muchnick v. Alcamo Supply & Contracting Corp. — 169 A.D.2d 711

Majority

p. 711

Saul Muchnick, Respondent, v Alcamo Supply and Contracting Corp. et al., Appellants.

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 ).

p. 712

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.

Cases cited

Prudco Realty Corp. v. Palermo 60 NY2d 656 N.Y. 1983-09-20 at 657 p. 711
Erljur Associates v. Weissman 134 AD2d 321 N.Y. App. Div. 1987-11-09 p. 711
Strauf v. Ettson Enterprises, Inc. 106 AD2d 737 N.Y. App. Div. 1984-12-06 p. 711