Ordered that the judgment is reversed insofar as appealed from, on the law, the second cause of action is reinstated, the defendant's motion is denied, that branch of the plaintiff's cross motion which was for summary judgment on the second cause of action on the element of trespass is granted, the cross motion is otherwise denied, and the matter is remitted to the Supreme Court, Putnam County, for a new trial consistent herewith, with costs to abide the event.
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