Appellate Division of the Supreme Court of the State of New York July 21, 2011 (Lance International, Inc. v. First National City Bank)

Contrary to defendant’s contention, its defense is that plaintiff lacks capacity to sue, not that the court lacks subject matter jurisdiction (see Security Pac. Natl. Bank v Evans, 31 AD3d 278, 279-280 [2006], appeal dismissed 8 NY3d 837 [2007]). Contrary to plaintiffs contention, Civil Court did not raise the issue of lack of capacity sua sponte.