
    Esteban E. Cedano, Appellant, v City of New York, Respondent, et al., Defendant.
    Argued October 6, 1980;
    decided November 11, 1980
    
      APPEARANCES OF COUNSEL
    
      J. Irwin Shapiro, Morris J. Eisen and Stephen Kruger for appellant.
    
      Allen G. Schwartz, Corporation Counsel (Bernard Abel and L. Kevin Sheridan of counsel), for respondent.
   OPINION OF THE COURT

Order reversed, without costs, and the case remitted to the Appellate Division, First Department, for exercise of that court’s discretion. In the circumstances present here it was improper for the Appellate Division to decide the issue presented as a matter of law.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg. Judge Meyer taking no part.  