Blair v. New York University College of Dentistry , 1962 N.Y. App. Div. LEXIS 11670 ( 1962 )

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.