Ordered that the order is modified, on the law, by (1) deleting the provision thereof which granted the defendant's motion for summary judgment, and substituting therefor a provision denying the motion, and reinstating the complaint, and (2) deleting the provision thereof which denied that branch of the plaintiffs' cross motion which was to dismiss the defendant's fourth affirmative defense, and substituting therefor a provision granting that branch of the motion; as so modified...
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