Supreme Court properly granted the petition. Although respondent concedes that the insurance policy requires physical contact (see Insurance Law § 5217), she nevertheless seeks to expand the meaning of that term to include circumstances such as those presented in this case. Respondent contends that there should be coverage even in the absence of actual physical contact because she is able to establish through the affidavits of two disinterested eyewitnesses that an unidentified vehicle forced her to take evasive action to avoid the collision, thereby causing her to sustain injuries. We reject respondent’s contention. “ ‘[P]hysical contact’ occurs within the meaning of [Insurance Law § 5217] when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle” (Matter of Allstate Ins. Co. v Killakey, 78 NY2d 325, 329 [1991]), and the Court of Appeals has consistently held that there must be some physical contact with the unidentified vehicle (see id. at 327-329; Matter of Smith [Great Am. Ins. Co.], 29 NY2d 116, 118-121 [1971]; Motor Veh. Acc. Indem. Corp. v Eisenberg, 18 NY2d 1, 4-5 [1966]). “The goal is to accord every
We reject the further contention of respondent that petitioner waived its right to deny coverage based on its delay in doing so. “[P]hysical contact goes to coverage, rather than exclusion, . . . [and n]o coverage exists in the absence of the required contact” (Matter of Prudential Prop. & Cas. Ins. Co. v Hobson, 67 NY2d 19, 21 [1986]; see generally Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188-190 [2000]). Inasmuch as there is no coverage here, it cannot be said that petitioner waived the right to deny coverage (see generally Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 698-699 [1980]). Present—Scudder, P.J., Hurlbutt, Lunn, Pine and Gorski, JJ.
