Opinion
January 3, 1968
In a renewed proceeding pursuant to CPLR article 75 to stay arbitration, petitioner appeals from an order of the Supreme Court, Queens County, dated January 23, 1967. Appeal dismissed, without costs, insofar as it is from (1) the first ordering paragraph of the order, which grants a temporary stay of arbitration, refers the issue of whether defendant Antonio Torres was uninsured at the time of the occurrence of the accident herein to a Special Referee for hearing and report, and otherwise holds the stay application in abeyance pending confirmation or disaffirmance of the report; and (2) the third ordering paragraph, which implements the first ordering paragraph. Otherwise, order reversed, without costs, and in accordance the second ordering paragraph, which directs petitioner to make an election, is struck out. This determination is made without prejudice to the subsequent granting of the same or similar relief. So much of the first ordering paragraph as grants a temporary stay of arbitration and holds the application for a permanent stay in abeyance contains nothing as to which appellant is aggrieved. As to the provision therein referring a primary issue to a Referee to hear and report, an order to such effect is not appealable ( Ayers v. Ayers, 16 A.D.2d 926); and this should apply to the third ordering paragraph, which merely implements that provision. In the interests of orderly procedure, we deem it advisable to delete the second ordering paragraph. Beldock, P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.