Opinion
Decided September 18, 1997
Appeal from Appellate Division of the Supreme Court, Fourth Judicial Department, entered in Erie County, Joseph R. Glownia, J.
Brown Kelly, L.L.P., Buffalo ( Daniel J. Marren of counsel), for appellant.
Hellerer, Cuomo O'Connor, Amherst ( Neil N. Cuomo of counsel), for respondents.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order reversed, with costs, defendant's motion to dismiss granted and complaint dismissed, for the reasons stated in the dissenting memorandum at the Appellate Division ( 239 A.D.2d 898).
Concur: Chief Judge KAYE and Judges TITONE, BELLACOSA, SMITH, LEVINE, CIPARICK and WESLEY.