Muchnick v. Alcamo Supply & Contracting Corp.

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). [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.