67 Misc. 2d 712 | N.Y. Sup. Ct. | 1971
This is an application pursuant to CPLR 7503 (subd. [b]) for an order staying arbitration proceedings between Helen Allaire, as Administratrix of the estate of Lawrence Allaire, and Allstate Insurance Company. Such •an application by a party who has not participated in arbitration, in the absence of an action on an arbitrable issue, constitutes a special proceeding under CPLR 7502 (subd. [a]). However, before the court can proceed to the merits of the issue raised by the application, supporting affidavits and papers in opposition, it first must dispose of two procedural defects.
First, the administratrix of the Allaire estate, despite the allegations of the affidavit in opposition, never served “ a notice of intention to arbitrate ”, pursuant to the provisions of CPLR 7503 (subd. [c]). The “demand for arbitration” filed with Allstate on April 30, 1971 is an entirely different document and does not set in motion the statutory period of limitation provided for in CPLR 7503 (subd. [c]). A “notice of intention-to arbitrate ”, in addition to specifying the agreement, the name and address of the party serving the notice, must state that unless the party served applies to stay arbitration within 10 days after such service he shall thereafter be precluded from objecting to the validity of the agreement between the parties. Since the “ demand for arbitration” is void of such a caveat it fails to meet the requirements of CPLR 7503 (subd. [c]) and is impotent as an instrument tolling the limiting period of 10 days during which an application for a stay must be initiated (Matter of Liberty Mut. Ins. Co. v. Keane, 28 A D 2d 703). If the April 30 ‘ ‘ demand for arbitration ’ ’ qualified as a “ notice of intention to arbitrate ”, the application for a stay would have to be denied on procedural grounds, since the commencement of the stay proceedings was obviously beyond the 10-day limitation provided for in CPLR 7503 (subd. [c]). However, since the administratrix has not commenced an action, has not applied for an order to compel arbitration (CPLR 7503, subd. [a]), nor served a notice of intention to arbitrate, Allstate, since it has not participated in arbitration nor made or been served with an application to compel arbitration, may make
On August 8, 1970 the administratrix’ intestate was operating a 1966 Volkswagen automobile, owned by Jack Fishman, in an easterly direction on Route 17 in the Township of Mamakating in Sullivan County, when it left the paved portion of the highway causing injuries resulting in death to Lawrence Allaire. Thereafter, the deceased’s fiduciary filed a claim with the Motor Vehicle Accident Indemnification Corporation pursuant to terms of an uninsured motorist indorsement attached to Allstate’s policy covering the Fishman vehicle. MVAIC refused to accept the claim, as there was a valid policy in effect on the automobile the deceased was operating with the consent of the insured owner. Claim was then commenced against Allstate based on an alleged ‘ ‘ hit-and-run ’ ’ accident.
It is ■ the contention of the applicant that only one vehicle was involved in the mishap and, further, that the claim that an unidentified vehicle caused, by physical contact, a hit-and-run accident, is a condition precedent rising to a question of fact that must be determined at trial before the matter can be arbitrated. The Allaire estate, relying on Matter of Smith, (Great Amer. Ins. Co.) (35 A D 2d 233) and MVAIC v. Eisenberg (18 N Y 2d 1), contends that the factual situation as sworn to by its hired investigator and witnesses of the incident leads inescapably to the conclusion there was 11 physical contact ’ ’ between the death car and another unknown vehicle, thereby foreclosing the necessity of fact finding by trial before arbitration.
In this connection it should be noted that witness Robert V. Foos, in his affidavit, stated that he was operating his vehicle easterly on Route 17 when the Fishman car passed him to his left. He observed the Fishman vehicle return to the easterly driving lane until it came nearly abreast of a gold Buick being operated easterly in the passing lane. Mr. Foos’ statement continues: ‘1 The gold car started to pull into the travelling lane, he was about 2 feet into the travelling lane, the red car began to swerve to the south shoulder. At this point he left the pavement and lost control. I was about 125 yards to the rear of these cars. From the action of the Volkswagen, he was either trying to avoid this accident or he had already been hit by the gold car. I didn’t see any contact between the two vehicles.” (Italics supplied.) The Allaire investigator also obtained the statements of Mr. and Mrs. Brophy who were also riding (Mrs. Brophy as
These statements and the contention of Allstate of the absence of any “ unknown vehicle ” must be weighed in light of the provisions of section 600 et seq. of the Insurance Law and the terms of the insurance contract between Fishman and Allstate. In hit-and-run cases, section 617 of the Insurance Law requires, as a condition precedent to arbitration, that the claimant establish an accident which “ arose out of physical contact of the motor vehicle causing such bodily injury with the insured or qualified person
The application to stay arbitration is granted. The preliminary factual issue of ‘ ‘ physical contact ’ ’ should be determined by trial before the matter can be sent to arbitration.
There is no dispute .that the deceased is a qualified person.