Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiff's motion which was to dismiss the fifth affirmative defense and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
In May 2005 the parties entered into a contract, pursuant to which the plaintiff became the primary...
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