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RAINBOW HOSPITALITY MANAGEMENT, INC. v. MESCH ENGINEERING, P. C.

270 A.D.2d 906 (2000)

705 N.Y.S.2d 765

RAINBOW HOSPITALITY MANAGEMENT, INC., Doing Business as THE PLEASUREDOME, Appellant, v. MESCH ENGINEERING, P. C., et al., Respondents. (Appeal No. 2.)

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided March 29, 2000.

Order unanimously affirmed with costs.

Memorandum:

Supreme Court properly granted defendants' motions to dismiss the amended complaint during the trial (see, CPLR 4401). We reject plaintiff's contention that the motions were based upon plaintiff's lack of legal capacity to sue (see, CPLR 3211 [a] [3]) and that defendants waived that defense by failing to raise it in their answers or by preanswer motion (see, CPLR 3211 [e]). "There is a...

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