Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover delay damages consisting of out-of-pocket expenses and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof granting the plaintiff's cross motion for summary judgment dismissing the defendant's fifth affirmative...
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