We reject plaintiffs' claim that defendant's CPLR 3211 (a) (4) defense was waived as a matter of law under CPLR 3211 (e) because it was not asserted in defendant's answer. Defendant's second affirmative defense, which alleges that the action, styled as one for breach of contract, should be converted to a CPLR article 78 proceeding because its gist is a challenge to Commissioner of Health's approval of the reimbursement rates calculated by defendant, gave plaintiffs clear...
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