(concurring). I agree with both the result and rationale in this case. In addition, I welcome this decision as a limitation on, hopefully even a step backwards from, the drastic line of cases which, following in the wake of Barasch v Micucci (49 NY2d 594), in my view unwarrantedly curtailed the discretion of the Appellate Divisions at the practice level (Eaton v Equitable Life Assur. Soc. of U. S., 56 NY2d 900, 903 [my dissent]).
Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur in Per Curiam opinion; Judge Fuchsberg concurs in a concurring memorandum; Judge Simons taking no part.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the opinion herein.