Howell v. Michael I. Levine International Travel, Inc.

In an action to recover damages for, inter alia, negligence and breach of contract, plaintiffs appeal from an order of the Supreme Court, Suffolk County (Doyle, J.), dated April 20,1983, which denied their motion to dismiss the fourth affirmative defense set forth in defendants’ *535answer. Order affirmed, without costs or disbursements, and without prejudice to renewal at trial. We agree with Special Term that the fourth affirmative defense is sufficiently pleaded to withstand a motion to dismiss. However, at the conclusion of the trial the plaintiffs may renew their motion if the proof so warrants. Mollen, P. J., Damiani, Mangano and Gulotta, JJ., concur.