Opinion
February 28, 1979
Appeal from the Erie Supreme Court.
Present — Cardamone, J.P., Simons, Hancock, Jr., Callahan and Doerr, JJ.
Judgment affirmed, with costs. Same memorandum as in Matter of Chen v Toia ( 67 A.D.2d 1085). All concur, except Simons and Callahan, JJ., who dissent and vote to reverse the judgment and remit the matter for further proceedings in accordance with the same dissenting memorandum as in Matter of Chen v Toia ( 67 A.D.2d 1085, supra).