Ordered that the judgment is reversed, on the law, the defendant/third-party plaintiff's motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Suffolk County, for a new trial; and it is further,
Ordered that the appeal from the order is dismissed as academic in light of our determination on the appeal from the judgment; and it is further,
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