Argued October 12, 1976
Decided November 16, 1976
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, THOMAS C. CHIMERA, J.
Stanley Geen for appellant.
W. Bernard Richland, Corporation Counsel (L. Kevin Sheridan of counsel), for respondent.
Order affirmed, without costs, on the Per Curiam opinion at the Appellate Division ( 48 A.D.2d 812).
Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and COOKE. Judge FUCHSBERG dissents and votes to reverse in the following memorandum: I would reverse on the well-written dissenting opinion by Mr. Justice EMILIO NUNEZ at the Appellate Division, emphasizing that the fact that a departure from accepted medical practice occurs in a psychiatric rather than in a nonpsychiatric setting is only an element to be weighed along with all the other circumstances in a particular case and is not the premise for an application of different legal principles.