Opinion
Decided March 30, 1982
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, JOSEPH SEDITA, J.
Howard S. Lipman for appellant.
Robert D. Kolken for respondent.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [b]), order reversed, with costs, for the reasons stated in the dissenting memorandum of Justice RICHARD D. SIMONS at the Appellate Division, and the matter remitted to Supreme Court, Erie County, for a new hearing.
Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.