Opinion
December 17, 1991
Appeal from the Supreme Court, New York County (Herman Cahn, J.).
In this action for breach of contract and violation of trade secrets, the IAS court erroneously charged the jury in a way that left a clear impression that the burden of proof was on the plaintiff that he, and not a successor corporation, was the real party in interest. The defendant bears the burden of proof on an affirmative defense (see, e.g., Kramer v City of New York, 173 A.D.2d 155, lv denied 78 N.Y.2d 857), including one that asserts that the plaintiff is not the real party in interest (Cleary v Dykeman, 162 App. Div. 897). The erroneous charge on the burden of proof warrants a new trial (see, Wilson v Nationwide Mut. Ins. Co., 168 A.D.2d 912, lv dismissed 77 N.Y.2d 940).
In view of the foregoing we need not reach plaintiff's other arguments.
Concur — Carro, J.P., Rosenberger, Ellerin, Kupferman and Ross, JJ.