Opinion
June 29, 1998
Appeal from the Supreme Court, Richmond County (Cusick, J.).
Ordered that the order is modified, on the law, by deleting the provision thereof which denied that branch of the plaintiffs motion which was to strike the affirmative defenses of the defendant Kenneth I. Wilpon, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the appellant.
The first affirmative defense alleges that the plaintiff failed to state a cause of action. However, "[i]n this judicial department, a defense that a complaint does not state a valid cause of action cannot be interposed in an answer, but must be raised by appropriate motion pursuant to CPLR 3211 (a) (7)" ( Propoco, Inc. v. Birnbaum, 157 A.D.2d 774, 775; see also, Platt v. Portnoy, 220 A.D.2d 652; Bentivegna v. Meenan Oil Co., 126 A.D.2d 506). Accordingly, this affirmative defense is stricken.
The second and third affirmative defenses must also be dismissed since the submissions with respect to those defenses are wholly conclusory in nature ( see, Propoco, Inc. v. Birnbaum, supra; Drake Am. Corp. v. Speakman Co., 144 A.D.2d 529).
The Supreme Court properly denied the plaintiffs motion for partial summary judgment on the issue of liability, as questions of fact remain as to whether the actions of Kenneth I. Wilpon's partner were outside the ordinary course of the business of the partnership, or, in the alternative, whether Wilpon knew of and authorized those actions ( see, Partnership Law § 24 Partnership; Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560; Ottinger v. Dempsey, 161 A.D.2d 691).
Bracken, J. P., Copertino, McGinity and Luciano, JJ., concur.