Opinion
February 1, 1991
Appeal from the Supreme Court, Nassau County, Collins, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Lowery, JJ.
Order unanimously reversed on the law with costs and motion denied. Memorandum: Special Term erred in granting plaintiff's motion for summary judgment. Although plaintiff has met its burden of establishing a prima facie case for an account stated (see, CPLR 3212 [b]), defendant has met his burden of raising a triable issue of fact by submitting proof in admissible form that the account had been assigned prior to the commencement of the action and plaintiff no longer had title to the account nor an interest in it. Such a showing is sufficient to defeat plaintiff's motion for summary judgment (see, Zuckerman v City of New York, 49 N.Y.2d 557; Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065). In addition, defendant's failure to raise the affirmative defense of failure to state a cause of action in his answer is not fatal because the defense may be raised at any time and survives the joinder of issue (see, CPLR 3211 [e]).