Order reversed, without costs, for reasons stated in dissenting opinion at Appellate Division, and case remitted to Appellate *582Division for consideration of questions of fact, if any, raised on appeal to that court (CPLR 5612, subd. [a], 5613).

Concur: Chief Judge Fuld and Judges Burke, Breitel and Gibson. Judges Scileppi, Bergan and Jasen dissent and vote to affirm on prevailing opinion at the Appellate Division.