dissents and votes to affirm in the following memorandum in which Mikoll, J., concurs. Herlihy, J. (dissenting). The prior decision of this court did not purport to hold that the cause of action for medical malpractice accrued on the date of the discovery of the negligence and, accordingly, there is no basis to overrule that decision on that ground as an alleged error. I would adhere to my dissent in Sessa v State of New York (63 AD2d 334, 336) and based upon our finding in the original decision herein that the claim was filed on November 8, 1976, it is apparent that the three-year bar of article 2 of the CPLR (CPLR 214) had not expired at the time the claim was filed. Accordingly, since in my view of subdivision 6 of section 10 of the Court of Claims Act the Legislature not only enlarged the discretionary powers of the Court of Claims as to filing a notice of claim but also enlarged the time within which a claim must be filed, there is no basis for overruling the prior decision herein upon the ground that Matter of Beary v City of Rye (44 NY2d 398) requires such a result. Upon reargument, the prior decision of the court should be adhered to. [88 Misc 2d 972.]