It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of the cross motion with respect to the fifth cause of action and reinstating that cause of action and as modified the order is affirmed without costs.
Memorandum:
We agree with plaintiff that Supreme Court erred in granting that part of defendant's cross motion seeking summary judgment dismissing the fifth cause of action, for...
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