Allstate Insurance v. Jacobs

85 A.D.2d 542, 444 N.Y.S.2d 665, 1981 N.Y. App. Div. LEXIS 16322

Opinion

Judgment, Supreme Court, New York County (Blangiardo, J.), entered April 17,1981, which denied the petition to stay arbitration and directed the parties to proceed to arbitration, unanimously reversed, on the law, without costs and disbursements, and the petition is granted pending a hearing to determine whether respondent was involved in an accident with a “hit and run” motor vehicle. On October 4,1979, respondent was operating his bicycle in Hollis, New York, when he was allegedly struck by a “hit and run” vehicle causing him to collide with a parked vehicle as a result of which he sustained personal injuries. Respondent filed a claim under the uninsured motorist indorsement of the Allstate policy issued to his father, alleging an accident with a “hit and run” vehicle. On Allstate’s application to stay the arbitration, a factual issue was clearly presented as to whether there was physical contact between the bicycle and the alleged “hit and run” motor vehicle. It was improper for Special Term to direct the matter to arbitration because the court is the appropriate forum to resolve that issue under the circumstances herein (Matter of Rosenbaum [American Sur. Co., N. YJ, 11 NY2d 310). The scope of arbitration under the uninsured motorist indorsement is more restrictive than the scope of arbitration under a no-fault insurance claim (Matter of Aetna Cas. & Sur. Co. v Bruton, 45 NY2d 871, revg 58 AD2d 551 on the dissenting memorandum by Justice Silverman at pp 553-554). Concur — Murphy, P. J., Birns, Ross, Lupiano and Fein, JJ.