BATOUL HERBERT ET AL., APPELLANTS, v. MORGAN DRIVE-A-WAY, INC. ET AL., RESPONDENTS, ET AL., DEFENDANT. (ACTION NO. 1) / MOLLICONE v. MILLER (ACTION NO. 2)

85 N.Y.2d 895, 650 N.E.2d 1316, 627 N.Y.S.2d 315 (1995).
March 30, 1995

Submitted by Cynthia Feathers, for Appellants.
Preclusion order entered, for Respondents.

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On review of submissions pursuant to section 500.4 of the Rules, order, insofar as appealed from, reversed, with costs, motion by defendants Morgan Drive-A-Way, Inc. and Errol K. Miller for summary judgment dismissing the complaint of plaintiffs Batoul Herbert and Donald Herbert as against them in Action No. 1 denied and certified question answered in the affirmative for the reasons stated in the dissenting memorandum of Justice Paul J. Yesawich, Jr. at the Appellate Division (202 AD2d 886, at 888-889). Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.