OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

We find no error of law in the determination of the Appellate Division that Special Term abused its discretion in conditionally denying defendant’s motion for summary judgment. Nor is there any substance to plaintiffs’ assertion that the Appellate Division was ousted of its authority of appellate review by the circumstance that, in reliance on plaintiffs’ compliance with the order of Special Term, the case had been restored to the calendar prior to the disposition of the appeal at the Appellate Division.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur in memorandum.

Order affirmed.