Opinion
November 26, 1968
Order entered December 20, 1967, herein appealed from, unanimously reversed on the law, with costs and disbursements to abide the event, and the motion for a stay granted pending a preliminary hearing. On the facts stated there is a substantial question raised regarding operation and control of the vehicle allegedly involved in the accident. A preliminary hearing should be held to judicially determine such issue of operation and control ( Matter of MVAIC [ Malone], 16 N.Y.2d 1027; Matter of Harris [ MVAIC], 25 A.D.2d 634). Respondent, in fact, consents to a stay for such purpose.
Concur — Botein, P.J., Stevens, Capozzoli, Rabin and McNally, JJ.