Opinion
(1409) CA 01-01250.
November 9, 2001.
(Appeal from Order of Supreme Court, Erie County, Whelan, J. — Arbitration.)
PRESENT: GREEN, J.P., HAYES, SCUDDER, KEHOE AND BURNS, JJ.
Order unanimously reversed on the law without costs, petition dismissed and cross petition granted.
Memorandum:
Supreme Court erred in granting the petition seeking a permanent stay of arbitration. Respondent was injured in a hit-and-run accident while spraying water on asbestos as part of his employment. Respondent was using a hose that was stretched across a road, and a taxicab driven by an unidentified driver made contact with the hose, pulling respondent into a utility pole. Contrary to petitioner's contention, the requisite "physical contact" occurred where, as here, "the accident originate[d] in [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 also, Matter of Aetna Cas. Sur. Co. v. Loy, 108 A.D.2d 709, 710).
Also contrary to petitioner's contention, we conclude that respondent provided notice of his supplemental uninsured motorist (SUM) claim "as soon as practicable". The accident occurred on May 11, 1999, and X rays ordered by respondent's family physician were unremarkable. Respondent thereafter saw an orthopedic specialist in late September, and that specialist indicated in a report dated October 8, 1999 that respondent had a torn rotator cuff. That report provided the first indication that respondent's injury "was more significant than originally determined", and respondent provided written notice of his SUM claim within 17 days of that report ( Matter of New York Cent. Mut. Fire Ins. Co. [Benson], 277 A.D.2d 920, 921; see also, Matter of Allstate Ins. Co. [Earl] v. State Farm Ins. Co., 284 A.D.2d 1002). Finally, although we agree with petitioner that respondent failed to commence an arbitration proceeding with the American Arbitration Association in accordance with the terms of the insurance policy at issue, that failure is not fatal to respondent's demand for arbitration.