Blair v. New York University College of Dentistry

15 A.D.2d 745, 1962 N.Y. App. Div. LEXIS 11670

Opinion

Motion by defendant Wallach to reargue so much of the order and decision of this court as reinstated the cross-complaint by defendant New York University College of Dentistry against him denied, with $10 costs. This disposition is without prejudice to defendant Wallach making an appropriate motion at Special Term for leave to serve a supplemental answer including the affirmative defense of res judicata (see Restatement, Judgment, § 106 and Comments; cf. id. §§ 96, 99). Res judicata is an affirmative defense which must be pleaded and proved (Civ. Prac. Act, §§ 242, 262; Westminster Presbyterian Church v. Trustees of Presbytery of N. Y., 211 N. Y. 214, 227-228). Concur — Breitel, J. P., McNally, Steuer and Bastow, JJ.