Opinion
Argued January 5, 1984
Decided February 14, 1984
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, VINCENT E. DOYLE, J.
Richard J. Lippes for appellant.
Richard N. Blewett for Richard Penfold, respondent.
Orders affirmed, without costs, for reasons stated in the memoranda at the Appellate Division ( 91 A.D.2d 867, 868). We would only add that, in other circumstances, there might be proof of change in the level of operation so substantial as to be sufficient to remove an activity from the exclusion clause of ECL 8-0111 (subd 5, par [a]), notwithstanding that the basic nature of the activity remains unchanged.
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and KAYE. Taking no part: Judge SIMONS.