Penny Kalfus, Respondent, v. Robert Kalfus, Appellant

Penny Kalfus, Respondent, v Robert Kalfus, Appellant. [664 NYS2d 526] [MAJORITY] Order, Supreme Court, Bronx County (Bertram Katz, J.), entered June 5, 1996, which granted plaintiff’s motion to confirm, and denied defendant’s cross motion to disaffirm, the Special Referee’s report on the division of marital property and the parties’ child support obligations, unanimously reversed, on the law, without costs, and the matter is remitted for a new decision that takes into consideration the transcript of the hearing held before the Special Referee. The matter must be remitted for a new decision since it appears from plaintiffs 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 AD2d 460, quoting Aron v Aron, 280 NY 328, 330). Concur—Rosenberger, J. P., Wallach, Tom and Colabella, JJ.