—Order unanimously modified on the law and as modified affirmed without costs in accordance with same Memorandum as in Ferrick v State of New York (198 AD2d 822 [decided herewith]). (Appeal from Order of Supreme Court, Erie County, Sedita, J. — Dismiss Complaint.) Present — Denman, P. J., Green, Balio, Boomer and Boehm, JJ.