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, motion by defendants Morgan Drive-A-Way, Inc. and Errol K. Miller for summary judgment dismissing the complaint of plaintiffs Batoul Herbert and Donald Herbert as against them in action No. 1 denied and certified question answered in the affirmative for the reasons stated in the dissenting memorandum of Justice Paul J. Yesawich, Jr., at the Appellate Division (202 AD2d 886, 888-889).

Concur: Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick.