Order, insofar as appealed from, unanimously reversed, on the law, with costs, motion denied and counterclaim reinstated.
Memorandum:
On plaintiff's motion to dismiss defendant's counterclaim pursuant to CPLR 3211 (a) (7), the court erred in ruling on the merits. Unless a motion to dismiss for failure to state a cause of action is converted by the court to a motion for summary judgment (CPLR 3211 [c]),
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