SWSA Corp. v. Allright Auto Parks, Inc.

Order unanimously modified on the law with costs to defendants and as modified affirmed and matter remitted to Supreme Court, Onondaga County, for further proceedings, in accordance with the following memorandum: We agree, for the reasons stated by the decision of Supreme Court (Mordue, J.), that the first, third, fourth, fifth and sixth causes of action should be dismissed. The court, however, improperly dismissed the second cause of action against Warren Parking Corp. for damages for breach of the rental agreement. Defendant Warren Parking Corp. does not challenge the adequacy of plaintiffs proof of damages in the second cause of action but contends instead that plaintiff failed to show that the lease was assigned to it by the predecessor corporation and, thus, plaintiff lacks standing to maintain that action. Defendant waived the issue of standing by failing to raise it in its answer (see, CPLR 3211 [a] [3]; [e]; Erljur Assocs. v Weissman, 134 AD2d 321, Iv denied 71 NY2d 802). Moreover, defendant alleged in its answer "that plaintiff corporation is the successor in interest to 325-345 South Warren Street Associates, the former owner of the premises in question.” Also, plaintiff presented evidence that the Associates acquired the assets of the original corporation, which would include an interest in the lease and that plaintiff in turn acquired the interest of the Associates. We modify the order appealed from, therefore, by reinstating the second cause of action in the complaint against Warren Parking Corp. and we remit the matter to Supreme Court, Onondaga County, for trial. (Appeal from order of Supreme Court, Onondaga County, Mordue, J. — dismiss action.) Present —Dillon, P. J., Denman, Boomer, Green and Davis, JJ.