Opinion
May 6, 1980
Order, Supreme Court, New York County, entered September 7, 1979 denying defendant's motion to dismiss complaint on ground that plaintiff does not have the capacity to sue, affirmed, without costs. The complaint leaves in doubt the legal character of the plaintiff, thus presenting a question as to plaintiff's capacity to sue in addition to those litigated at Special Term. (Cf. General Associations Law, § 12; Not-For-Profit Corporation Law, § 1202, subd. [a], par. [4]; CPLR 3015, subd. [b].) The factual issues critical to a determination of plaintiff's capacity to sue require a full evidentiary exploration. The nature of the issue may justify a separate, preliminary trial. (CPLR 603.)
Concur — Kupferman, J.P., Birns, Fein, Sandler and Silverman, JJ.