RAINBOW HOSPITALITY MANAGEMENT INC v. MESCH ENGINEERING NCIDA (2000)

 Supreme Court properly granted defendants' motions to dismiss the amended complaint during the trial (see, CPLR 4401).   We reject plaintiff's contention that the motions were based upon plaintiff's lack of legal capacity to sue (see, CPLR 3211[a][3] ) and that defendants waived that defense by failing to raise it in their answers or by preanswer motion (see, CPLR 3211 [e] ).  “There is a distinction between capacity to sue, which gives the right to come into court, and possession of a cause of action, which gives the right to relief in court” (Kittinger v. Churchill Evangelistic Assoc., 239 App.Div. 253, 256, 267 N.Y.S. 719;  see, Field v. Allen, 9 A.D.2d 551, 189 N.Y.S.2d 489).   Defendants moved to dismiss the amended complaint on the ground that plaintiff has no right to relief because plaintiff did not exist when the conduct complained of occurred and sustained no injury as the result of that conduct.   That objection “runs to the sufficiency of the complaint as failing to state facts sufficient to state a cause of action” (Wells v. Merrill, 204 App.Div. 696, 698, 198 N.Y.S. 496;  see, Truty v. Federal Bakers Supply Corp., 217 A.D.2d 951, 951-952, 629 N.Y.S.2d 898;  Sterritt v. Heins Equip. Co., 114 A.D.2d 616, 617, 494 N.Y.S.2d 455), which may be raised by motion at any time (see, CPLR 3211 [e];  Schel v. Roth, 242 A.D.2d 697, 663 N.Y.S.2d 609;  Herman v. Greenberg, 221 A.D.2d 251, 634 N.Y.S.2d 99).   On the merits, the record establishes that plaintiff possesses no interest sufficient to maintain this action and the amended complaint was therefore properly dismissed pursuant to CPLR 3211(a)(7) (see, Burdett Radiology Consultants v. Samaritan Hosp., 158 A.D.2d 132, 136, 557 N.Y.S.2d 988;  see also, Wells v. Merrill, supra, at 698-699, 198 N.Y.S. 496;  Carvel Farms Corp. v. Bartomeo, 50 Misc.2d 1073, 1077, 272 N.Y.S.2d 507).

Order unanimously affirmed with costs.

MEMORANDUM: