Ordered that the order dated May 8, 2009, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, the judgment of the Civil Court of the City of New York, Queens County, entered February 19, 2008, is reversed, the plaintiff's motion for summary judgment is denied, the defendant's cross motion for summary judgment dismissing the complaint is granted, without prejudice to the commencement of a new action, and the order dated January...
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