In re the Arbitration between Prudential Property & Casualty Insurance & De Blasio

In a proceeding to stay arbitration, petitioner appeals from a judgment of the Supreme Court, Nassau County (Levitt, J.), entered March 10, 1981, which, without a hearing, dismissed the petition and directed that the 552 parties proceed to arbitration. Judgment reversed, without costs or disbursements, and proceeding remitted to Special Term for a hearing on the issues of (1) whether there was any “physical contact” between the respondent’s vehicle and the alleged hit-and-run vehicle and (2) if so, whether, under the circumstances here present, respondent’s timely filing of a claim for no-fault benefits constituted substantial compliance with the policy requirement of the timely filing of a statement, under oath, that the insured “has a cause or causes of action * * * against a person or persons whose identity is unascertainable”. The facially conflicting statements by the respondent concerning the hit-and-run aspects of the within accident, and the fact that the circumstances thereof lie peculiarly within, the respondent’s knowledge, create factual issues necessitating a hearing (see Matter of Royal Globe Ins. Co. v Smith, 79 AD2d 710; Matter of Country-Wide Ins. Co. [Ihne], 61 AD2d 743). Moreover, the existence of circumstances which might excuse the failure to give a separate, formalized notice of recourse to the uninsured motorists’ provision of the underlying policy of insurance within the period of time as limited therein requires further exploration (cf. Matter of Travelers Ins. Co. [Ford], 103 Misc 2d 1005). We have considered appellant’s remaining contention and find it to be without merit (see Matter of Allstate Ins. Co. [Frank], 57 AD2d 950, 953, revd on other grounds 44 NY2d 897). Damiani, J. P., Lazer, Gulotta and Margett, JJ., concur.