Opinion
December 4, 1995
Appeal from the Supreme Court, Kings County (Ramirez, J.).
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 A.D.2d 652; see also, Propoco, Inc. v Birnbaum, 157 A.D.2d 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 A.D.2d 621, 625). Thompson, J.P., Altman, Krausman and Goldstein, JJ., concur.