OPINION OF THE COURT

Memorandum.

The order appealed from should be affirmed, essentially for the reason stated in the memorandum at the Appellate Division. In that connection we note that, if the respondent had raised the failure to exhaust administrative remedies point at Special Term, it could not have been obviated factually or legally. Therefore, especially since the matter was legally conclusive of the case, we cannot say that it was *631error as a matter of law for the Appellate Division to have based its disposition on that ground.

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

Order affirmed, with costs, in a memorandum.