(concurring). I join the majority opinion except for its unnecessary restatement of an erroneous preservation rule.
The majority says that if Eujoy’s argument were, as Van Wagner argues, unpreserved, that might benefit not Van Wagner but Eujoy (majority op at 423 n 4). This oddity would result from following a very odd rule—one that, as I have explained elsewhere, is without justification (see Hecker v State of New York, 20 NY3d 1087, 1088-1089 [2013, Smith, J., concurring]). I continue to hope that the day will come when the rule is abandoned.
Chief Judge Lippman and Judges Graffeo, Smith, Pigott and Rivera concur with Judge Read; Judge Smith in a separate *428opinion in which Judge Pigott concurs; Judge Abdus-Salaam taking no part.Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.