
    [915 NE2d 1158, 886 NYS2d 862]
    Keith Haywood, Appellant, v Curtis Drown, Respondent. (Action No. 1.) Keith Haywood, Appellant, v Pat Smith et al., Respondents. (Action No. 2.)
    Decided September 8, 2009
    
      APPEARANCES OF COUNSEL
    
      Dechert LLP, New York City (Gary J. Mennitt of counsel), for appellant.
    
      Andrew M. Cuomo, Attorney General, Albany (Robert M. Goldfarb, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
   OPINION OF THE COURT

Upon reargument, following remand by the Supreme Court of the United States, order in Haywood v Drown reversed, with costs, motion to dismiss denied and case remitted to Supreme Court, Wyoming County, for further proceedings, and order in Haywood v Smith modified, without costs, by denying the motion to dismiss the cause of action predicated on 42 USC § 1983 and remitting to Supreme Court, Wyoming County, for further proceedings on that cause of action and, as so modified, affirmed (see Haywood v Drown, 556 US —, 129 S Ct 2108 [2009]).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.  