Opinion
Decided June 8, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, ANGELO D. RONCALLO, J.
Andrew M. Harrison and Morris J. Eisen for appellants.
Leo Rothbard for respondent.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order affirmed, with costs. We cannot say, as a matter of law, that the Appellate Division abused its discretion by deeming defendant's answer amended to include the affirmative defense of res judicata on a motion for summary judgment. Furthermore, although the prior judgment of Supreme Court does not specifically recite that it is "on the merits", that judgment should be given res judicata effect in order to prevent the plaintiff from circumventing the preclusion decree (cf. Palmer v Fox, 28 A.D.2d 968, affd 22 N.Y.2d 667).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.