¶1 OPINION OF THE COURT
¶2 Order affirmed, without costs, for the reasons stated in the memorandum of the Appellate Division (80 AD2d 707).
¶3 *930 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 NY2d 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.