Opinion
May 21, 1976
Appeal from the Monroe Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Mahoney and Dillon, JJ.
Order unanimously reversed, without costs, petition reinstated and matter remitted to Monroe Supreme Court for further proceedings in accordance with the following memorandum: This is an appeal from an order dismissing a petition seeking a permanent stay of arbitration. Respondent requested arbitration under the provisions of an uninsured motorist indorsement of an insurance policy issued by petitioner. The trial court erred in holding that it was not necessary to determine as a condition precedent to arbitration whether there was physical contact between the uninsured "hit and run" vehicle and respondent's vehicle. The terms of the insurance policy, as well as the applicable statutory provisions (Insurance Law, § 617), make it clear that in such cases physical contact is a precondition to arbitration. "In hit and run cases, section 617 Ins. of the Insurance Law requires, as a condition precedent to arbitration, that the claimant establish an accident which `arose out of physical contact'" (MVAIC v Eisenberg, 18 N.Y.2d 1, 3). This continues to be the law (see, e.g., Matter of Smith [Great Amer. Ins. Co.], 29 N.Y.2d 116; Matter of Allstate Ins. Co. v Watts, 45 A.D.2d 1005; Matter of Allstate Ins. Co. [Morales], 42 A.D.2d 951; Matter of Allstate Ins. Co. [Oberfast], 36 A.D.2d 708; Matter of Garland v Providence Washington Ins. Co., 35 A.D.2d 844). Inasmuch as the parties focused upon the correct issue, had ample opportunity to prove their positions and do not claim that further evidence may be available, there is no need for a trial de novo (see Victor Catering Co. v Nasca, 8 A.D.2d 5). This court may make original findings (see Phelps v State Mut. Life Assur. Co., 10 A.D.2d 60; Victor Catering Co. v Nasca, supra) or we may remit for the trial court to make appropriate findings (Buffalo Elect. Co. v State of New York, 9 A.D.2d 372, revd on other grounds 14 N.Y.2d 453). Here the determination to be made is in substantial measure dependent upon an assessment of the credibility of the witnesses, and the trial court is in a better position to make such an evaluation. Accordingly, the case is remitted and the trial court is directed to make appropriate findings as to whether physical contact occurred between respondent's motorcycle and the unidentified motor vehicle.