Ordered that the order is reversed insofar as appealed from, with costs, and the branch of the defendant's motion which was for summary judgment dismissing the plaintiff's fourth cause of action for consequential damages, is denied.
Res judicata, which forbids relitigation of the same claim, applies only when a final judgment is rendered on the merits. Here, insofar as there has not been a final judgment on the merits of the plaintiff's fourth cause of action, the...
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