Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the defendants' contention, the motion at issue was to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) and not for summary judgment pursuant to CPLR 3212. Moreover, the Supreme Court did not treat the motion as one for summary judgment (cf., CPLR 3211 [c]; Rokeach v Zaltz,
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