George Barrett, as Administrator of The Estate of Camille Barrett, Deceased, et al., Appellants,
v.
Kasco Construction Co., Inc., Respondent.
Court of Appeals of the State of New York.
Andrew M. Harrison and Morris J. Eisen for appellants.
Leo Rothbard for respondent.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 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 AD2d 968, affd 22 N.Y.2d 667).