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TOLPYGINA v. TEPER

63 A.D.3d 722 (2009)

880 N.Y.S.2d 326

VALERIYA TOLPYGINA, Respondent, v. DIANA TEPER, Respondent, and STEVEN BOYM et al., Appellants, et al., Defendants.

Appellate Division of the Supreme Court of New York, Second Department.

Decided June 2, 2009.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court correctly determined that the causes of action which were the subject of that branch of the appellants' motion which was to dismiss pursuant to CPLR 3211 (a) (5), or, in the alternative, for summary judgment, had been the subject of a previous cross motion for identical relief. While the cross motion was made before issue was joined (see CPLR 3212 [a];

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