Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the plaintiff's motion for summary judgment in lieu of complaint is denied, the order dated December 14, 2009, is modified accordingly, and the motion and answering papers are deemed to be the complaint and answer, respectively; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the order...
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