— Order unanimously modified and, as modified, affirmed, without costs, in accordance with same memorandum as in Petrus v Smith (Appeal No. 1) (91 AD2d 1190). (Appeal from order of Supreme Court, Wayne County, Kennedy, J. — summary judgment.) Present— Dillon, P. J., Hancock, Jr., Doerr, Denman and Moule, JJ., concur.