Ordered that the order is reversed, on the law, with costs, and the plaintiff's 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 plaintiff's 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 A.D.2d 447; Public Adm'r of Bronx County v Equitable Life Assur. Socy., 192 A.D.2d 325). Mangano, P.J., Miller, Santucci and Hart, JJ., concur.