Opinion
Argued October 14, 1976
Decided November 16, 1976
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JAMES H. BOOMER, J.
Michael T. Tomaino and Ronald L. Brown for appellant-respondent.
E. Garrett Cleary and Thorold J. Deyrup for respondent-appellant.
Order modified, without costs, and the order of Supreme Court, Monroe County, reinstated on the dissenting opinion by Mr. Justice RICHARD D. SIMONS at the Appellate Division ( 48 A.D.2d 258, 263-265) and, as so modified, affirmed. Question certified answered in the negative.
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE.