After the service of a summons and complaint sounding in defamation, defendants moved to dismiss pursuant to CPLR 3211 (a) (5) solely on the ground that the action was time-barred. In response, plaintiff served an amended complaint omitting, for the most part, the allegation of defamation and substituting therefor a claim of malicious prosecution. The parties executed a stipulation withdrawing defendants' motion without prejudice to their "right to answer, move or otherwise...
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