Ordered that the amended order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiff's contention, in accordance with the terms of CPLR 3211 (e), the defendant did not waive the defense of the plaintiff's lack of capacity to sue (see CPLR 3211 [a] [3]). "The fact that [the defendant] failed to formally amend [his] answer and chose to move to dismiss instead should make no difference in this case" (Bennett v First Natl. Bank of Glens...
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