Ordered that the order dated August 19, 2004, is reversed insofar as appealed from, on the law and as a matter of discretion, that branch of the cross motion which was to dismiss the petitions pursuant to CPLR 3126 (3) is granted, the Referee's report is rejected, the order dated August 24, 2004, is vacated, and the proceedings are dismissed; and it is further,
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