In re the Arbitration between Phillips & Allcity Insurance

57 A.D.2d 516, 393 N.Y.S.2d 560, 1977 N.Y. App. Div. LEXIS 11417

Opinion

Appeal from an order and judgment (one paper) of the Supreme Court, New York County, entered upon default September 30, 1976, which granted petitioner’s application to confirm an arbitrator’s award and for judgment in accordance therewith, unanimously dismissed. Petitioner-respondent shall recover of respondent-appellant $60 costs and disbursements of this appeal. An order made on default is not appealable (CPLR 5511; Ross v Magid, 22 AD2d 829). However, we have examined the record and have considered appellant’s contentions. If we were not dismissing the appeal, we would affirm the order-judgment (see Bishop v Gilmore, 30 AD2d 696). Appellant claims, among other assertions, that as an action for negligence was pending against the assured, wherein he contested ownership, operation and control of the motor vehicle involved in the accident, that issue should not have been decided by the arbitrator. This argument must fall because it is now well settled that "no fault” arbitration is very broad in contrast to uninsured motorist arbitration and the former includes "such threshold issues as the question of involvement in the accident” (Matter of Walker [Government Employees’ Ins. Co.], 54 AD2d 911; see, also, Matter of Green Bus Lines v Bailey, 80 Misc 2d 483, affd 50 AD2d 924; Matter of Horace Mann Ins. Co. v Poluchnovich, 53 AD2d 590). Concur—Murphy, P. J., Birns, Silverman and Capozzoli, JJ.