Opinion
November 30, 1970
In a proceeding by an automobile liability insurance carrier to stay arbitration sought by its assured, the appeal is from an order of the Supreme Court, Nassau County, dated May 26, 1970, which, after a hearing, denied the application and directed arbitration to proceed. Order reversed, without costs, and proceeding remitted to Special Term for a hearing de novo on the issue whether there was physical contact between respondent's car and a "hit-and-run" automobile within the purview of the applicable provisions of the New York automobile accident indemnification indorsement contained in respondent's insurance policy. In rendering his oral decision, the Justice at Special Term stated that the evidence adduced from respondent, whose testimony was the only direct evidence as to physical contact, did not permit him to make any other finding even if he did not believe respondent. This, in our opinion, is an incorrect statement of the law (see Hacker v. City of New York, 26 A.D.2d 400, 403, affd. 20 N.Y.2d 722; Bottalico v. City of New York, 281 App. Div. 339, 341). Moreover, the statement connotes a tendency to underestimate the significance of facts and circumstances which could be reasonably inferred from the testimony adduced and which facts and circumstances may tax the credibility of respondent's version even if the only direct evidence as to the contact came from respondent. While the court may not have so intended it, it is our view that it raises sufficient doubts as to whether full consideration was given to all the facts and circumstances adduced and alluded to by appellant on this appeal. Christ, P.J., Rabin, Hopkins, Munder and Latham, JJ., concur.