Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court erred in denying that branch of the defendant's motion which...
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