Opinion
November 28, 1983
In an action to recover damages for, inter alia, breach of contract, plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Cerrato, J.), entered October 5, 1982, which granted defendant's motion for summary judgment and dismissed the complaint. Judgment affirmed, with costs. Under the doctrine of res judicata, plaintiffs' present claims are barred by the prior determinations of Justices Wood and Slifkin (see O'Brien v City of Syracuse, 54 N.Y.2d 353, 357; Smith v Russell Sage Coll., 54 N.Y.2d 185, 191-193; cf. Spindell v Brooklyn Jewish Hosp., 35 A.D.2d 962, 963, affd 29 N.Y.2d 888). Although the answer raised this defense only in relation to the prior determination by Justice Wood, this was because the determination by Justice Slifkin occurred after the answer in this action had been served. As a defendant can be granted summary judgment on an unpleaded defense where, as here, the prerequisites are met ( Rogoff v San Juan Racing Assn., 54 N.Y.2d 883, 885; Barrett v Kasco Constr. Co., 56 N.Y.2d 830, 831), Special Term properly granted the motion. In light of this determination, we need not reach the other issues raised by the parties. Titone, J.P., O'Connor, Weinstein and Rubin, JJ., concur.