
6 N.Y.3d 881 (2006)
850 N.E.2d 25
817 N.Y.S.2d 210
KEVIN BERNARD et al., Respondents,
v.
MUSAH MUMUNI, Appellant, and
SADAY ALLHASSAN, Respondent, et al., Defendant.
Court of Appeals of the State of New York.
Decided May 9, 2006.
*882 Rivkin Radler LLP, New York City (Harris J. Zakarin of counsel), for appellant.
Martin, Fallon & Mullé, Huntington (Richard C. Mullé of counsel), for Saday Allhassan, respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO and READ. Judge R.S. SMITH dissents and votes to reverse for the reasons stated in the dissenting opinion by Justice John W. Sweeny at the Appellate Division (22 AD3d 186, 191-193) Concur.

OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, *883 with costs, and certified question answered in the affirmative, for the reasons stated in the opinion by Justice David Friedman at the Appellate Division (22 AD3d 186).
