Opinion
December 29, 1993
Appeal from the Supreme Court, Erie County, Flaherty, J.
Present — Green, J.P., Balio, Fallon and Davis, JJ.
Order reversed on the law without costs, motion granted and new trial granted. Same Memorandum as in Constable v Matie ([appeal No. 3] 199 A.D.2d 1004 [decided herewith]). All concur except Balio, J., who dissents in part in same Dissenting Memorandum as in Constable v Matie ([appeal No. 3] 199 A.D.2d 1004 [decided herewith]).