A defense that a corporate plaintiff has failed to comply with the requirements of Business Corporation Law § 1312 is based on the premise that plaintiff is without legal capacity to sue, and this defense is waived unless raised either by motion to dismiss or in the responsive pleading. (CPLR 3211 [a] [3]; [e].) In his affidavit in support of a motion to dismiss for failure to state a cause of action, defendant's mere statement that plaintiff may not have complied with...
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