Ordered that the order dated January 13, 2010, is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and, upon reargument, the original determination in the order dated August 19, 2009, granting the defendant's motion pursuant to CPLR 4401 for judgment a matter of law based upon the plaintiff's failure to establish a prima facie case is adhered to.
At trial, the plaintiff testified that on June 28, 2004, he...
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