Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was to dismiss the action as time-barred pursuant to CPLR 3211 (a) (5), and substituting therefor a provision denying that branch of the motion as unnecessary; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.
Even assuming that the defendant's motion to dismiss was filed five days late, the...
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