(concurring). I join in the majority opinion by Judge Simons for the court, and, like Justice Jackson, forthrightly surrender my contrary views in Conner v Conner (97 AD2d 88, 105 [Titone, J. P., concurring]) to a more cogent position (McGrath v Kristensen, 340 US 162, 178 [Jackson, J., concurring]).
Chief Judge Wachtler and Judges Jasen, Meyer, Kaye, Alexander and Titone concur with Judge Simons; Judges Meyer and Titone concur in separate concurring opinions.
Order modified, with costs to defendant, and case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.