Opinion
October 16, 1997
Appeal from the Supreme Court, Bronx County (Bertram Katz, J.).
The matter must be remitted for a new decision since it appears from plaintiff's affidavit in support of her motion to confirm the Special Referee's report that minutes of the hearing were taken, submission of the transcript thereof was not waived and the court rendered its decision without having before it "the testimony in some form or agreement by the parties as to its substance sufficient to permit the court to pass upon a challenge made to the sufficiency of the evidence" ( Matter of Shulman v Elco Constr. Corp., 12 A.D.2d 460, quoting Aron v. Aron, 280 N.Y. 328, 330).
Concur — Rosenberger, J.P., Wallach, Tom and Colabella, JJ.