OPINION OF THE COURT

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [b]), order reversed, with costs, and defendant’s motion for summary judgment denied for the reasons stated in the dissenting memorandum of Justice Harold Birns at the Appellate Division (86 AD2d 578, 579).

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