Empire Mutual Insurance v. Sash

53 A.D.2d 614, 385 N.Y.S.2d 943, 1976 N.Y. App. Div. LEXIS 13297

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 1, 1976
• Status: Published

Opinion

In a proceeding to stay arbitration sought by respondents Philip Sash and Flex Pierre upon a claim on the uninsured motorist endorsement respondent of Sash’s automobile insurance policy, in which proceeding appellant, Criterion Insurance Company, the insurer of the motor vehicle involved in the accident with the above-mentioned individual respondents, was added as a party, the appeal is from an order of the Supreme Court, Kings County, dated May 19, 1975, which, after a nonjury trial, inter alia, (1) permanently stayed arbitration and (2) ordered appellant to defend its insured in any action arising out of the accident. Proceeding remanded to Special Term for a determination, after a hearing if one is necessary for the purpose, of whether the owner of the vehicle denies receipt of Criterion’s notice of cancellation, and appeal held in abeyance in the interim. On the record before us, we can find no indication as to whether Isabel Thomas denies receipt of Criterion’s notice of cancellation. That fact is crucial in disposing of this appeal (see Manning v Boston Old Colony Ins. Co., 48 AD2d 838). Gulotta, P. J., Hopkins, Martuscello and Latham, JJ., concur; Shapiro, J., concurs in the result on constraint of Manning v Boston Old Colony Ins. Co. (48 AD2d 838), although he still adheres to the views inherent in the dissent in that case, and notes that Nagel v State Farm Mut. Auto Ins. Co. (51 AD2d 1022) is not to the contrary as there the record shows that the insured denied having received notice of the cancellation of the policy.