Opinion
Argued October 19, 1988
Decided December 1, 1988
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Robert White, J.
Isaac Tessler for appellant.
Eugene Staub for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs, and the certified question not answered as unnecessary.
In a dispute involving uninsured motorist coverage, the Appellate Division — in certifying a question to this court — noted an apparent conflict "between the First and Second Departments on the issue of whether New Jersey law applies (see, Matter of Allstate Ins. Co. v Walsh, 99 A.D.2d 987, [1st Dept] and Allcity v Williams, 120 A.D.2d 1 [2d Dept])". The parties' briefs deal solely with the issue whether physical contact with another vehicle must be proven for uninsured motorist coverage of a New York vehicle in a New Jersey accident; they assume that New York law requires physical contact (see, Insurance Law § 5217; Matter of Smith [Great Am. Ins. Co.], 29 N.Y.2d 116), but New Jersey law does not (NJ Stat Annot §§ 17:28-1.1, 39:6-76; Perez v American Bankers Ins. Co., 81 N.J. 415, 409 A.2d 269).
We are, however, precluded by the established facts of this case from reaching that issue. Under both New York and New Jersey law, some involvement of another vehicle is a prerequisite to uninsured motorist coverage. But here, there is an affirmed finding supported by the record that "there was no evidence of involvement by any vehicle other than the one being operated by the claimant and no evidence of any contact with any other vehicle." Thus, the result is the same whether New York or New Jersey law applies.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.
Order affirmed, etc.