OPINION OF THE COURT

Order reversed, with costs, the order of Supreme Court, New York County, reinstated, and question certified answered in the negative (see Rush v Savchuk, 444 US 320).

Concur: Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer. Judge Jasen concurs in the following memorandum.

(concurring). While I join my colleagues in reversing the order of the Appellate Division, I would have preferred an institutional reassessment of Seider v Roth (17 NY2d 111) by our court rather than an obligatory abandonment of the Seider doctrine upon constraint of Rush v Savchuk (444 US 320) (see concurring opn Donawitz v Danek, 42 NY2d 138, 143-151).

Order reversed, etc.