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  5. 45 N.Y.2d 913 (1978)
 

MURTHA v. YONKERS CHILD CARE ASS'N, INC.

45 N.Y.2d 913 (1978)

Vincent K. Murtha, Appellant, v. Yonkers Child Care Association, Inc., et al., Respondents, et al., Defendant.

Court of Appeals of the State of New York.

Decided October 24, 1978.

Attorney(s) appearing for the Case

Leon J. Greenspan and Arthur H. Goodman for appellant.

Morton N. Wekstein for respondents.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

MEMORANDUM.

The order of the Appellate Division should be modified by reversal of so much thereof as dismissed the cause of action against the association and that matter remitted to the Appellate Division for consideration of the facts (CPLR 5613), without costs, and, as so modified, the order should be affirmed, with costs to the individual defendants.

We cannot conclude as a matter of law that there was no evidence...

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