Order reversed, with costs, and motion denied. Memorandum: The issues presented on this appeal are identical with those before the court in Ziemba v. Sternberg ( 45 A.D.2d 230). In accordance with our holding therein, the order of Special Term, made prior to that decision, should be reversed and defendant's motion denied. All concur, Mahoney, J. under the constraint of Ziemba v. Sternberg ( supra)