In re the Arbitration between McGuane & Motor Vehicle Accident Indemnification Corp.

29 A.D.2d 835, 287 N.Y.S.2d 861, 1968 N.Y. App. Div. LEXIS 4573

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 22, 1968
• Status: Published

Opinion

Order unanimously reversed, without costs, and matter remitted to Brie County Supreme Court for further proceedings in accordance with the following memorandum: In this appeal from a denial of respondent-appellant’s application to vacate petitioner-respondent’s demand for arbitration, MVAIC asserts, among other claims, that it has a right to a preliminary jury trial on the issues of coverage. Petitioner contends that it has a right to arbitrate its claim which accrued under the disclaimer provision or under the hit-and-run provision of the MVAIC endorsement. The right to a trial under the circumstances of the instant case has been recognized in several recent decisions. The unilateral declaration of noncoverage by the insurer of the vehicle which struck petitioner’s automobile “ does not ipso facto and without judicial investigation satisfy the requirement of the MVAIC endorsement that for MVAIC coverage the alleged tort-feasor must have been uninsured at the time of the alleged accident. We construe subdivision 2-a of section 167 and subdivision (2) of section 600 of the Insurance Law as giving MVAIC an opportunity to litigate before a court, rather than before an arbitrator”. (Matter of MVAIC [Malone], 16 N Y 2d 1027, 1029; also, see, Matter of Carlos [MVAIC], 17 N" Y 2d 614; Matter of Rosenbaum [Amer. Sur. Co., N. Y.], 11 IT Y 2d 310; Matter of Porteek [MVAIC], 19 A D 2d 802.) The motion for a jury trial of the issues of fact should be granted and arbitration should be stayed pending determination of such issues. (Appeal from order of Erie Special Term denying motion to vacate demand for arbitration.) Present — Bastow, J. P., Goldman, Del Vecchio, Marsh and Witmer, JJ.