Opinion
February 21, 1963
Order, entered on September 5, 1962, denying motion to stay arbitration, unanimously reversed on the law and the facts, with $20 costs and disbursements to appellant, and a hearing ordered. Appellant, MVAIC, moved to stay arbitration until there was determination after a hearing by the court that the accident involved contact with an uninsured vehicle. Appellant claims no such contact was involved. Special Term correctly held that such an issue requires a hearing ( Matter of Rosenbaum [ American Sur. Co. of N.Y.], 11 N.Y.2d 310; Matter of Motor Vehicle Acc. Ind. Corp. [ Downey], 11 N.Y.2d 995), but held that the affidavits did not set forth sufficient evidentiary facts to raise an issue. Where the facts are peculiarly within the knowledge of one party, a slight degree of proof is sufficient to raise an issue. Under this test, the proof submitted was ample, in fact it exceeded that submitted in Matter of Rosenbaum ( supra).
Concur — Rabin, J.P., McNally, Stevens, Eager and Steuer, JJ.