In re the Arbitration Between Motor Vehicle Accident Indemnification Corp. & Brinson
18 A.D.2d 809
N.Y. App. Div.
1963
Check Treatment

In a proceeding by the Motor Vehicle Accident Indemnification Corporation (hereafter called “MVAIC”), against the claimant Jeanette Brinson: (a) to vacate her demand for the arbitration of her claim for damages for personal injury asserted under an automobile liability insurance policy which, pursuant to statute (Insurance Law, § 167, subd. 2-a), contained an “uninsured motorist” indorsement; (b) to direct a hearing of the preliminary issue whether the injury was caused by an intentional assault or by an accident; and (e) to stay the arbitration pending the judicial determination of such preliminary issue, the MVAIC appeals from an order of the Supreme Court, Nassau County, dated February 15, 1962, which denied its application (see 32 Mise 2d 946). Order *810reversed on the law, without costs; application granted to the extent that arbitration is stayed pending the judicial determination by the court, or by a jury if demanded, of the issue raised herein; and matter remitted to Special Term for further proceedings not inconsistent herewith. No questions of fact have been considered. It is claimed by MVAIC [that the collision of the vehicles underlying this claim was deliberately caused by the uninsured motorist. If this be so, then MVAIC is not responsible (McCarthy v. Motor Vehicle Acc. Ind. Corp., 16 A D 2d 35). In our opinion, the policy indorsement does not contemplate arbitration of a disagreement as to whether the collision was accidental or deliberate. Bodily injury “ caused by accident ” is a condition precedent for arbitration. Where, as here, the existence of such condition is in dispute, there is an issue for the court or jury, as the case may be (cf. Matter of Rosenbaum [Amer. Sur. Co. of N. Y.], 11 N Y 2d 310; Matter of Motor Vehicle Acc. Ind. Corp. [Downey], 11 N Y 2d 995; Matter of Motor Vehicle Acc. Ind. Corp. [Lucash], 16 A D 2d 975; Matter of Motor Vehicle Acc. Ind. Corp. [Brown], 15 A D 2d 578; Matter of Phoenix Assur. Co. of N. Y. [Digamus], 9 A D 2d 998). Beldock, P. J., Brennan, Hill, Rabin and Hopkins, JJ., concur.