OPINION OF THE COURT

Order modified, with costs to defendants, by remitting the case to the Supreme Court, Erie County, for the entry of a declaratory judgment in favor of defendants in accordance with the memorandum at the Appellate Division (60 AD2d 771; see, also, Town of Pompey v Parker, 44 NY2d 805; cf. Lanza v Wagner, 11 NY2d 317, 334) and, as so modified, order affirmed.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg.