Opinion
November 30, 1970
Appeal from a judgment of the Supreme Court at Special Term, entered April 1, 1969, in Albany County, which dismissed appellant carrier's petition for a stay of arbitration. Respondent was injured in an accident in Albany County on May 19, 1967 when his vehicle was in collision with a tractor trailer owned and operated by residents of Florida. He instituted an action against them in a United States District Court and, after his attorneys received a notice of disclaimer from said nonresidents' insurance company, a demand was served upon appellant for arbitration pursuant to the uninsured motorist's indorsement of the policy issued by appellant to respondent. The petition is devoid of an evidentiary showing. By the conclusional allegations therein that "such disclaimer is not valid" and that the purpose thereof is to obtain a stay of arbitration until such time as claimant, in an action or proceeding, proves "by competent legal evidence, that neither the driver nor the owners of the other vehicle were covered by policies of insurance at the time of the accident", appellant has not fulfilled its burden of showing the existence of sufficient evidentiary facts to establish a genuine issue as to whether an uninsured vehicle was involved ( Matter of O'Brien [ Aetna Cas. Sur. Co.], 33 A.D.2d 1085). These mere conclusions did not cast the validity of the disclaimer in doubt (cf. Matter of Vanguard Ins. Co. [ Polchlopek], 18 N.Y.2d 376, 379) so as to create an issue of fact barring arbitration. Judgment affirmed, with costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Sweeney, JJ., concur.