OPINION OF THE COURT

Order modified, with costs to defendant, by denying plaintiff’s cross motion to dismiss the fourth, fifth and sixth affirmative defenses and, as so modified, affirmed for the reasons stated in the dissenting in part opinion by Justice Leonard H. Sandler at the Appellate Division (117 AD2d 86, 93-96). Certified question answered in the negative.

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