Order insofar as appealed from reversed without costs, plaintiff's cause of action reinstated and matter remanded to the court below for all further proceedings.
Since the order, insofar as appealed from, dismissing the action, did not determine a motion made on notice (CPLR 2211), plaintiff is not entitled to appeal as of right from said portion of the order (CCA 1702 [a] [2]). However, in the exercise of our discretion, we treat the notice of appeal from so much...
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