| Foxen Co. v Irish Pub, Ltd. |
| 2008 NY Slip Op 10581 [57 AD3d 939] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Foxen Company, Respondent, v Irish Pub, Ltd., et al., Appellants. |
—[*1]
Michael T. Lamberti, Woodbury, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendants appeal from a judgment of the Supreme Court, Nassau County (Dana, Ct. Atty. Ref.), dated October 19, 2007, which, inter alia, upon their default in appearing or answering, and after an inquest on the issue of damages at which they appeared, is in favor of the plaintiff and against them in the principal sum of $118,501.50.
Ordered that the judgment is affirmed, with costs.
The defendants waived the defense of lack of capacity to sue when they defaulted and failed to raise it in their subsequent motion to vacate their default (see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]).
The defendants' remaining contentions are without merit. Fisher, J.P., Florio, Carni and Chambers, JJ., concur.