Ordered that the order is modified, on the law, by deleting the provision thereof granting the defendant's cross motion for summary judgment dismissing the complaint, and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.
The City of New York failed to establish its prima facie entitlement to judgment as a matter of law (see Ayotte v Gervasio,
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