OPINION OF THE COURT

Upon reargument, following remand by the Supreme Court of the United States, order in Haywood v Drown reversed, with costs, motion to dismiss denied and case remitted to Supreme Court, Wyoming County, for further proceedings, and order in Haywood v Smith modified, without costs, by denying the motion to dismiss the cause of action predicated on 42 USC § 1983 and remitting to Supreme Court, Wyoming County, for further proceedings on that cause of action and, as so modified, affirmed (see Haywood v Drown, 556 US —, 129 S Ct 2108 [2009]).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.