On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order modified, with costs to defendant, by deleting the dismissal of the complaint and by making a declaration in favor of defendant in accordance with the memorandum at the Appellate Division ( 93 A.D.2d 720), and, as so modified, affirmed.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE.