Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered September 27, 2012. The order, insofar as appealed from, denied the branches of defendant's motion seeking summary judgment or, in the alternative, dismissal of the complaint pursuant to CPLR 3211 (a) (4) and (7).

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action, plaintiff seeks to recover damages for breach of a credit card agreement and based on an account stated. Defendant moved for, among other things, summary judgment or, in the alternative, to dismiss the complaint pursuant to CPLR 3211 (a) (4) and (7). In support of the motion, defendant argued that plaintiff lacks standing to sue, that defendant had not been given notice of the assignment of the alleged debt to plaintiff, and that plaintiff had violated the Fair Debt Collection Practices Act (15 USC § 1692). Defendant appeals from so much of the order of the Civil Court as denied the branches of his motion seeking summary judgment or, in the alternative, dismissal of the complaint pursuant to CPLR 3211 (a) (4) and (7).

In determining a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, [the] motion for dismissal will fail" (Guggenehimer v Ginzburg, 43 NY2d 268, 275 [1977] see Wilner v Allstate Ins. Co., 71 AD3d 155 [2010]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC , Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]). Upon a review of the complaint, we conclude that the factual allegations set forth therein manifest cognizable causes of action for breach of a credit card agreement and for an account stated.

Defendant's claim that plaintiff lacks standing to sue was not asserted in defendant's answer or in a pre-answer motion to dismiss the complaint and, thus, this defense has been waived (see CPLR 3211 [e] U.S. Bank N.A. v Denaro, 98 AD3d 964 [2012] Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239 [2007]). Consequently, defendant cannot raise this defense in the instant motion.

Defendant's remaining arguments are either without merit or unpreserved for appellate review. [*2]

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Solomon, JJ., concur.
Decision Date: February 28, 2014