Ordered that the order is reversed, on the law, with costs, the motion to vacate the order dated January 31, 1994, is granted, that order is vacated, and the complaint is reinstated.
The order dismissing the complaint pursuant to CPLR 3126 (3) was improperly based on an ex parte oral motion made by the defendant without giving notice to the plaintiff. We note, however, that this determination is made without prejudice to the defendant's renewal of the motion in accordance herewith. Miller, J.P., Joy, Hart and Krausman, JJ., concur.