Moon v. Tollefsen Bros.

14 A.D.2d 520, 217 N.Y.S.2d 403, 1961 N.Y. App. Div. LEXIS 9572

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1961
• Status: Published

Opinion

The motion for summary judgment pursuant to rule 113 of the Rules of Civil Practice based upon a claim of res judicata must be denied where such a defense is not pleaded in the answer. (Grande v. Torello, 12 A D 2d 937; Halladay v. Kolner, 276 App. Div. 943.) The complaint alleges that the plaintiff was caused to slip on accumulations of sandblasting material and was violently precipitated into a large hole in the vessel. There was a finding of fact in the Federal court action that the accident was not caused by any loose sandblast shot in the area. But it also appears that in the conclusions of law the Federal court passed expressly only upon the liability of the United States of America. In ¿view of the general allegations in the complaint it may well be that such aford-mentioned finding would preclude plaintiff’s recovery in the instant action.' (Restatement of Judgment, § 68, comment w; ef. § 96, comment j.) Accordingly, the defendants should be permitted to raise such issues as an affirmative defense. Concur — Botein, P. J., Breitel, Rabin, Stevens and Eager, JJ. [28 Misc 2d 29.]