Order unanimously reversed, with costs, and motion denied.
Memorandum:
The motion to dismiss this complaint was made pursuant to CPLR 3211 (subd. [a], par. 7) upon the ground that it failed to state a cause of action. Although the court might have treated the motion as one for summary judgment (CPLR 3211, subd. [c]), there is nothing in the record to indicate that the court did in fact choose to treat it as such. On the contrary, both the order appealed from...
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