Opinion
May 7, 1979
In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Westchester County, dated November 17, 1978, which denied his motion to dismiss the third affirmative defense of defendant Lorenz, that the complaint does not state a cause of action as against him. Order reversed, on the law, without costs or disbursements, and motion to dismiss the third affirmative defense granted. In this negligence action in which plaintiff claims severe injuries as a result of a three-car automobile collision, defendant Lorenz interposed in his answer, as a third affirmative defense, that the complaint, as to him, fails to state a cause of action. The motion to dismiss that defense is granted. The defense that a claim fails to state a cause of action may not be interposed in an answer (Glenesk v. Guidance Realty Corp., 36 A.D.2d 852; see, also, Farrell, Civil Practice, 29 Syracuse L Rev 449, 496; contra Riland v. Todman Co., 56 A.D.2d 350 ; Prompt Elec. Supply Co. v. W.E. Tatem, Inc., 43 Misc.2d 333; McLaughlin Graziano, Civil Practice, 23 Syracuse L Rev 275, 290). Titone, J.P., Suozzi, Lazer and Cohalan, JJ., concur.