In re the Arbitration between Empire Mutual Insurance & Impliazzo

57 A.D.2d 824, 395 N.Y.S.2d 454, 1977 N.Y. App. Div. LEXIS 12020

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1977
• Status: Published

Opinion

Judgment (denominated an order), Supreme Court, New York County, entered November 18, 1976, denying petitioner’s application to stay arbitration, unanimously reversed, on the law, and the petition granted, without costs and without disbursements. An automobile owned and operated by Elizabeth Impliazzo was in collision with an automobile of Trevor Allen’s. The insurer of the Allen vehicle is presently in liquidation. Impliazzo, taking the position that the offending (Allen) vehicle was uninsured, served a demand for arbitration upon her own insurance carrier, Empire Mutual Insurance Company, based on the uninsured motorist’s endorsement in the policy. Empire applied at Special Term to stay arbitration on the ground that the offending vehicle was insured. Special Term denied the stay of arbitration. We would reverse. Sections 333 and 334 of the Insurance Law provide for a security fund to be used to pay claims against an insolvent insurer. The insurer of the offending vehicle is a participant in this fund and covered by these sections. Therefore, since the Allen vehicle cannot be deemed uninsured, the motion to stay arbitration should have been granted (State-Wide Ins. Co. v Curry, 55 AD2d 675). Concur — Kupferman, J. P., Birns, Capozzoli and Lane, JJ.