Ordered that the order is modified, on the law, with costs, by deleting the provision thereof granting that branch of the defendant's cross motion which was for summary judgment dismissing the first cause of action, which sought a declaratory judgment, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs payable by the plaintiff to the defendant, and the matter is remitted...
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