Ordered that the cross appeal is dismissed as abandoned (see 22 NYCRR 670.8 [e] [1]); and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was to dismiss the fifth cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further,
Ordered that one...
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