Ordered that the order is modified, on the law, by deleting the provision thereof granting the defendant's cross motion, in effect, pursuant to CPLR 3211 (a) (7) to dismiss the action for failure to state a cause of action, and substituting therefor provisions denying the cross motion and deeming the moving and answering papers to the plaintiff's motion for summary judgment in lieu of complaint to be the complaint and answer, respectively; as so modified, the order is affirmed...
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