OPINION OF THE COURT

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, for the reasons stated in the memorandum at the Appellate Division (104 AD2d 965; see also, Tebbutt v Virostek, 65 NY2d 931).

Concur: Chief Judge Wachtler and Judges Simons, Kaye and Alexander. Judge Jasen dissents and votes to reverse for the reasons stated in his dissenting opinion in Tebbutt v Virostek (65 NY2d 931). Taking no part: Judges Meyer and Titone.