The majority recite generally good hornbook law, but it is not as rigid as stated. There is recent precedent which supports the denial of summary judgment and permits this action to be litigated (see Gilberg v Barbieri, 53 NY2d 285). In its decision, Special Term recited precisely why the principles of collateral estoppel are not applicable in this case. Due process should not permit a litigant to be bound by an adverse determination made in a prior proceeding where there is new evidence submitted to the court that the cross member relied upon in the prior action was not the crossbar installed and that the cross member now available will show this. Such matters are not governed by any well-defined rules, but depend in a great degree upon the facts presented to the court. They are addressed to the court’s discretion, designed to accomplish substantial justice (Barrett v Third Ave. R.R. Co., 45 NY 628) and whether a party had a full and fair opportunity to litigate a prior determination involves a practical inquiry into the realities of litigation (Gilberg v Barbieri, supra, p 292). (Appeal from order of Supreme Court, Schuyler County, Ellison, J. — summary judgment.) Present — Simons, J. P., Hancock, Jr., Callahan, Denman and Boomer, JJ.