Opinion
July 6, 1961
Order entered on January 23, 1961, denying defendants' motion for summary judgment, affirmed, with leave to the defendants, if they so desire, to amend their answer to include the defense or partial defense of collateral estoppel, with costs to abide the event. 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 afore-mentioned finding would preclude plaintiff's recovery in the instant action. (Restatement of Judgment, § 68, comment n; cf. § 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.]