33 A.D.2d 1100 | N.Y. App. Div. | 1970
—Order unanimously affirmed, with costs. Memorandum: We are unable to agree with appellant’s contention that the claimant failed to report a “ hit and run ” accident to the police. It appears that claimant notified the State Police that she had been struck by an unknown vehicle, thus complying with the statutory requirement (Insurance Law, § 608, subd. [b]) and the indorsement on her insurance policy. “ One who reports an accident to a police officer reports the occurrence, and not in terms of legal consequences. It is then the duty of the investigating policeman to develop such further details as may be available for investigation by questioning or otherwise.” (Matter of Boxill v. MVAIC, 33 A D 2d 13, 15.) Since appellant sought a stay of arbitration, it had the burden of showing the existence of sufficient evidentiary facts to establish a genuine preliminary issue in order to justify a stay. (Matter of Kuhn [MVAIC], 31 A D 2d 707.) This initial burden has not been met here. We take further note of appellant’s failure to request a trial of any claimed issue and thus, in effect, waiving its right thereto. (Appeal from order of Erie Special Term denying motion to stay arbitration.) Present — Goldman, P. J., Witmer, Gabrielli, Moule and Henry, JJ. [60 Misc 2d 407.]