Opinion
Submitted October 3, 2001.
October 22, 2001.
In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated December 14, 2000, which denied the petition and dismissed the proceeding.
Martin, Fallon Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for appellant.
Feeney, Gayoso Fitzpatrick, LLP, Hauppauge, N.Y. (Rosa M. Feeney of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, HOWARD MILLER, BARRY A. COZIER, JJ.
ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Nassau County, to determine, after a hearing, the issue of whether there was any physical contact between the vehicle owned by Elsie Toussaint and the alleged hit-and-run vehicle.
Physical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle (see, Insurance Law § 5217; Matter of Allstate Ins. Co. v. Taylor, 271 A.D.2d 443; Matter of Aetna Life Cas. v. Gramazio, 242 A.D.2d 530). While direct contact between the insured's vehicle and the unidentified vehicle is not required where the collision involves multiple vehicles, the underlying accident must originate from a "collision with an unidentified vehicle, or an integral part of an unidentified vehicle" (Matter of Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325, 329; see, Matter of Allstate Ins. Co. v. Basdeo, 273 A.D.2d 466; Matter of Federal Ins. Co. v. Luhmann, 229 A.D.2d 438, 439). In this case, there is a triable issue of fact as to whether the accident originated from a collision with the unidentified vehicle. Accordingly, the Supreme Court erred in dismissing the proceeding to stay arbitration without conducting a hearing on the issue (see, Matter of Atlantic Mut. Ins. Co. v. Roth, 253 A.D.2d 875; Matter of Aetna Life Cas. v. Gramazio, supra; Matter of Maryland Cas. Co. v. Piasecki, 235 A.D.2d 423).
In the event the Supreme Court determines that this is a valid uninsured motorist claim, the petitioner is entitled to have the respondent Valarie Johnson submit to a physical examination and an examination under oath (cf., Matter of Allstate Ins. Co. v. Faulk, 250 A.D.2d 674).
SANTUCCI, J.P., FLORIO, H. MILLER and COZIER, JJ., concur.