Guglielmo v. Roosevelt Hospital Staff Housing, Co. , 635 N.Y.S.2d 42 ( 1995 )

—In an action to recover damages for personal injuries, etc., the defendants Roosevelt Hospital Staff Housing Co., Inc., and Lehrer McGovern Bovis, Inc., appeal from an order of the Supreme Court, Kings County (Ramirez, J.), dated July 22, 1994, which granted the plaintiffs’ motion to strike their fourth affirmative defense.

Ordered that the order is affirmed, with costs.

"In this judicial department, a[n affirmative] defense that a complaint does not state a valid cause of action cannot be interposed in an answer” (Platt v Portnoy, 220 AD2d 652; see also, Propoco, Inc. v Birnbaum, 157 AD2d 774, 775). Therefore, the appellants’ fourth affirmative defense was properly stricken. The dismissal of the defense is not a determination on the merits. If the appellants seek to test the sufficiency of the amended complaint, they must do so by an appropriate motion pursuant to CPLR 3211 (a) (7) (see, Platt v Portnoy, supra; Singh v Kalish, 153 AD2d 621, 625). Thompson, J. P., Altman, Krausman and Goldstein, JJ., concur.