Columbia Interconnect Associates, Inc. v. Tele/Resources, Inc. , 412 N.Y.S.2d 182 ( 1979 )

— In an action to recover damages for breach of contract (1) plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County, entered January 19, 1978, as granted defendant summary judgment dismissing plaintiff’s first cause of action and a portion of plaintiff’s second cause of action, and (2) defendant cross-appeals from so much of the same order as denied its motion for summary judgment as to certain portions of plaintiff’s second cause of action. Order modified, on the law, by adding thereto a provision striking defendant’s first affirmative defense to the second cause of action. As so modified, order affirmed, without costs or disbursements. The defendant asserts as an affirmative defense to each of the two causes of action that the corporate plaintiff was not in existence on the date of the contract. It appears from the undisputed facts that plaintiff adopted the agreement by its actions in furtherance of the performance thereof. Hence, the agreement was enforceable by it and defendant’s affirmative defense in this regard should be stricken (cf. S & B Rubber & Chem. Corp. v Stein, 7 NYS2d 553, affd 255 App Div 1012; see, also, Ehrlich v Drake Constr. Corp., 92 NYS2d 711). Hopkins, J. P., Damiani, Titone and O’Connor, JJ., concur.