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, insofar as appealed from, reversed, with costs, respondent Cutler’s cross motion for summary judgment denied for reasons stated in the dissenting memorandum of Justice Arnold L. Fein at the Appellate Division (120 AD2d 468, 470), and case remitted to the Appellate Division, First Department, for consideration of issues not passed upon on the appeal to that court.

Concur: Judges Meyer, Simons, Kaye, Alexander, Titone and Hancock, Jr. Taking no part: Chief Judge Wachtler.