On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order reversed, with costs, and defendant's motion for summary judgment denied for the reasons stated in the dissenting memorandum of Justice HAROLD BIRNS at the Appellate Division ( 86 A.D.2d 578, 579).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.