Calderon v. Sclafani

Judgment, Supreme Court, New York County, entered on October 15, 1974, affirmed, without costs and without disbursements. Concur—-Kupferman, J. P., Murphy and Yesawich, JJ.; Lupiano and Capozzoli, JJ., dissent in the following memorandum: We dissent. It is our view that the evidentiary basis delineated in the referee’s report as warranting a new election does not come within the ambit of Matter of Lowenstein v. Larkin (40 A D 2d 604, affd. 31 N Y 2d 654)