Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with same memorandum as in Hout v Coffman ([appeal No. 1] 126 AD2d 973 [decided herewith]). (Appeal from order of Supreme Court, Niagara County, Wolf, J.—dismiss action.) Present—Callahan, J. P., Doerr, Denman, Pine and Balio, JJ.