Konow v. Sugarman , 71 A.D.2d 1016 ( 1979 )

—In an action, inter alia, to recover commissions allegedly due him, plaintiff appeals from so much of an order of the Supreme Court, Queens County, dated July 31, 1978, as denied the branch of his motion which sought to dismiss defendants’ first affirmative defense. Defendants cross-appeal from so much of the said order as granted the branch of plaintiffs motion which sought to dismiss their second affirmative defense. Order modified, on the law, by deleting the third decretal paragraph thereof and substituting therefor a provision granting that branch of plaintiff’s motion which sought to dismiss the first affirmative defense. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to plaintiff. A defense that a complaint does not state a cause of action cannot be interposed in an answer (Glenesk v Guidance Realty Corp., 36 AD2d 852; Bazinet v Lorenz, 70 AD2d 582). The pleading of that defense is surplusage, as it may be asserted at any time even if not pleaded (CPLR 3211, subd [e]; see Siegel, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:38, 1978-1979 Supp, p 8). Mollen, P. J., Titone, Mangano and Gibbons, JJ., concur.