*790 OPINION OF THE COURT

Order affirmed, without costs, for the reasons stated in the opinion by Justice Leonard H. Sandler at the Appellate Division (83 AD2d 465) and because defendant as the prevailing party in that court was not entitled as a matter of law to an award of costs and disbursements (CPLR 8107).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Gabrielli.