SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
September 30, 1968
BLANCHE MOLINO, AS ADMINISTRATRIX OF THE ESTATE OF CAROL A. MOLINO, DECEASED, APPELLANT,
COUNTY OF PUTNAM ET AL., DEFENDANTS, AND MICHAEL J. PRODOTI, RESPONDENT
Order of the Supreme Court, Putnam County, dated May 20, 1968, which granted respondent's motion to amend his answer so as to include the defense of res judicata, reversed, on the law, with $10 costs and disbursements, and motion denied.
Beldock, P. J., Christ, Brennan, Munder and Martuscello, JJ., concur.
In our opinion, the defense of res judicata which respondent seeks to interpose in his amended answer is not available against appellant, who was not a party or in privity with the defendant in the litigation which resulted in the prior judgment (cf. B. R. De Witt, Inc. v. Hall, 19 N.Y.2d 141; Cummings v. Dresher, 18 N.Y.2d 105, 107-108; Brooks v. Horning, 27 A.D.2d 874).
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