Opinion
December 29, 1980
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of the respondent's uninsured motorists claim, petitioner appeals from so much of an order of the Supreme Court, Queens County, dated November 9, 1979, as, upon reargument, denied petitioner's application to permanently stay arbitration and directed the parties to proceed to arbitration. Order modified by deleting the third decretal paragraph thereof. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to petitioner, and matter remitted to Special Term for a hearing on the issue of whether the respondent was in fact involved in a hit and run accident. Examination of the record reveals that there are several unresolved factual issues regarding whether there was actual physical contact with a hit and run vehicle. Such contact must be established by the respondent as a condition to arbitration of his claim (see Matter of Midwest Mut. Ins. Co. [Roberson], 64 A.D.2d 985; Matter of Country-Wide Ins. Co. [Ihne], 61 A.D.2d 743). A hearing is necessary to determine the issues. Mollen, P.J., Titone, Mangano and O'Connor, JJ., concur.