Opinion
December 18, 1995
Appeal from the Supreme Court, Nassau County (Kutner, J.).
Ordered that the order is reversed, as a matter of discretion, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issue of whether or not there was physical contact between the vehicle insured by the petitioner and the alleged offending vehicle.
Physical contact is a condition precedent to an arbitration that is based on a so-called hit-and-run accident ( see, Insurance Law § 5217; Matter of Smith [Great Am. Ins. Co.], 29 N.Y.2d 116; Matter of Empire Mut. Ins. Co. [Zelin], 120 A.D.2d 365). When there is a genuine triable issue of fact with regard to whether the claimant's vehicle actually came into contact with the offending vehicle, the appropriate procedure is to stay the arbitration pending a hearing on that issue ( see, Matter of Empire Mut. Ins. Co. v Zelin, supra; Matter of Allstate Ins. Co. v Jacobs, 85 A.D.2d 542). The appellant's affidavit creates an issue of fact with regard to physical contact which must be resolved at a hearing ( see, Matter of Prudential Prop. Cas. Ins. Co. v Schwartz, 104 A.D.2d 557).
It is well settled that a party seeking to vacate a default judgment on the ground of excusable default ( see, CPLR 5015 [a] [1]) must establish both a meritorious claim and a reasonable excuse for the default ( see, Schiavetta v McKeon, 190 A.D.2d 724, 725). The appellant's affidavit establishes a meritorious claim. The appellant has also established a reasonable excuse for failing to respond to the petition. Since the petition sought a stay pending a hearing on the issue of physical contact and the appellant had no objection to a hearing on that issue, she did not oppose the petition. Bracken, J.P., O'Brien, Ritter, Friedmann and Goldstein, JJ., concur.