concur in part and dissent in part in a memorandum by Casey, J. Casey, J. (concurring in part and dissenting in part). We disagree with so much of the majority’s holding as affirms Special Term’s dismissal of Leo Blank’s complaint against Irv-Mil. Based upon the majority’s conclusion that the dismissal of Leo’s complaint in the prior action was without prejudice, it necessarily follows that the order cannot be given res judicata effect in this action (see, City of New York v Caristo Constr. Corp., 62 NY2d 819; Miller Mfg. Co. v Zeiler, 45 NY2d 956; Iacono v Japan Line, 89 AD2d 948, appeal dismissed 58 NY2d 1112).