
    Marco Avendano, Respondent, v Sazerac, Inc., Appellant. (And a Third-Party Action.)
    [634 NYS2d 390]
   —In an action to recover damages for personal injuries, the defendant Sazerac, Inc. appeals from an order of the Supreme Court, Queens County (Durante, J.), dated July 21, 1994, which granted the plaintiffs motion to strike the ninth affirmative defense in its amended verified answer.

Ordered that the order is reversed, on the law, with costs, and the plaintiffs motion is denied.

The record fails to establish as a matter of law whether or not the plaintiff is in this country legally. Consequently, the Supreme Court erred in dismissing the defendant’s affirmative defense which alleged that the plaintiffs lost earnings, if any, should be reduced because the plaintiff is not in this country legally (see, Collins v New York City Health & Hosps. Corp., 201 AD2d 447; Public Adm’r of Bronx County v Equitable Life Assur. Socy., 192 AD2d 325). Mangano, P. J., Miller, Santucci and Hart, JJ., concur.  