Ordered that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the second cause of action and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements, and the plaintiff is directed to serve, within 10 days of service upon him of a copy of this decision...
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