Cross motion to dismiss the appeal granted only to the extent that the appeal is transferred, on constraint of the Constitution of the State of New York (art VI, § 5, subd b), to the Appellate Division, Second Department (but see NY Const, art VI, § 4, subd i), on the ground that the sole constitutional question presented on this direct appeal is not substantial (see Matter of Gerzof, 45 AD2d 450, mot for lv to app den, app as of right dsmd and stay den 35 NY2d 644, 855, 856; Mildner v Gulotta, 405 F Supp 182, affd 425 US 901).