Opinion
April 29, 1974
In a proceeding to stay arbitration of respondent's personal injury claim, under the uninsured motorist provisions of an automobile insurance policy which was issued by petitioner, the latter appeals from an order of the Supreme Court, Westchester County, dated March 23, 1973, which denied the petition. Order reversed, without costs, and stay granted pending trial and determination of the issue of the existence of a "hit and run" vehicle, for which purposes the proceeding is remitted to Special Term. The allegations in the petition denying the existence of a "hit and run" vehicle in the accident in which respondent was injured are factual, based on a police accident report, and not insufficient as conclusory. Consequently, the proceeding must be remitted for trial of this issue ( Matter of Rosenbaum [ American Sur. Co. of N.Y.], 11 N.Y.2d 310). Hopkins, Acting P.J., Martuscello, Latham, Christ and Brennan, JJ., concur.