Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.
The defendant moved pursuant to CPLR 3211 (a) (5) to dismiss the plaintiffs' complaint on the ground that the cause of action may not be maintained because of the applicable Statute of Limitations. In his reply affirmation the defendant first raised the argument that the complaint should also be dismissed for failure to state a cause of action (CPLR 3211...
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