Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the defendant's cross motion which was for summary judgment dismissing the complaint and substituting therefor a provision denying that branch of the cross motion, and (2) by deleting the provision thereof denying, as academic, the plaintiffs' motion pursuant to CPLR 3126 to strike the defendant's answer or, in the alternative, to preclude the defendant from presenting...
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