Opinion
Argued January 14, 1982
Decided February 11, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, JEROME F. HANIFIN, J.
John F. O'Mara for appellant.
Robert Abrams, Attorney-General ( Lew A. Millenbach and Shirley Adelson Siegel of counsel), for respondent.
Order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division ( 80 A.D.2d 707).
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER and MEYER. Judge FUCHSBERG concurs in the following memorandum: Since the very recent decision in Topel v Long Is. Jewish Med. Center ( 55 N.Y.2d 682, 685 [FUCHSBERG, J., dissenting]) would have required that this case be dismissed, not just on the facts as the Court of Claims and the Appellate Division did, but on the law as well, a fortiori, I too vote to affirm though on constraint of that case.