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Walsdorf v. Miller

79 Misc. 2d 166 Court Supreme Court, Appellate Term, Second Department, Decision date 1973-08-09 English

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p. 166
Gerald Walsdorf, by Gladys Walsdorf, His Mother and Natural Guardian, Respondent, v. Sarah Miller, as Administratrix of the Estate of William Miller, Deceased, Appellant.
Supreme Court, Appellate Term, Second Department,
August 9, 1973.
A. Allen Stanger (Nathan Cyperstein and James B. Reich of counsel), for appellant.
p. 167
Memorandum. Order unanimously reversed, with $10 costs to defendant, and motion to amend answer and for summary judgment granted.

Defendant’s freedom from contributory negligence was established in the prior action. It was error to deny the motion to amend the answer to allege the defense of res judicata and for summary judgment based on such defense.

Concur — Groat, P. J., Rinaldi and Cone, JJ.