Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the motion of the defendant Jose Irizarry which was pursuant to RPAPL 1301 (3) to dismiss the complaint insofar as asserted against him is denied, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of that branch of the defendant's motion which was denied as academic.
On May 1, 2008,...
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