conclusion supported by the evidence; there was fraud as a matter of law. 2. Legal and Equitable Bases for J.N.O.V. a) Res Judicata and Related Doctrines Marshak has always contended in this case that Treadwell’s counterclaim for cancellation is precluded by prior litiga-tions. This Court has repeatedly rejected this argument because Marshak has cited only one prior case in which Treadwell was a party-in-interest, The Drifters, Inc. v. Thomas, et al., Index No. 27336/1971 (N.Y.Sup.Ct.), which was dismissed because of Treadwell’s failure to provide adequate discovery. See Trans, at 435-38. No issue was actually litigated in that case and there was no judgment on the merits. See Maitland v. Trojan Electric & Machine Co., Inc., 65 N.Y.2d 614, 491 NY.S.2d 147, 480 N.E.2d 736 (1985)(<HOLDING>); see also 7B N.Y. C.P.L.R. (McKinney’s) § 5013
holding that dismissal for failure to comply with discovery orders is on the merits holding that under new york law a dismissal for failure to comply with discovery obligations is not a judgment on the merits and does not bar a subsequent suit involving the same parties and issues holding that a dismissal on limitations grounds is a judgment on the merits holding that a divorce granted at a foreign consulate in new york was not valid for immigration purposes because it did not comply with new york law holding that a prior suit and a subsequent suit between the same parties did not involve the same claim because the evidence necessary to sustain the subsequent suit was insufficient to entitle the plaintiff to relief in the prior suit