In re the Arbitration between Country-Wide Insurance & Manning

— Judgment (denominated an order) of Supreme Court, New York County (Edward H. Lehner, J.), entered July 23, 1982, denying petitioner’s application for a stay of arbitration, reversed, on the law and the facts, and the arbitration is stayed, 472 without costs. Respondent Daisy B. Manning (Manning), an employee of the New York City Department of Transportation (DOT), was involved in a two-car collision while driving a DOT automobile in the performance of her duties. DOT is a self-insurer of its vehicles and drivers. Petitioner (Country-Wide) insured Manning with a policy providing coverage in excess of any other similar available insurance coverage. When Manning learned that the tortfeasor was uninsured, she filed a claim under this policy, and when CountryWide resisted, she demanded arbitration to determine the issues of fault and damages. Upon application for stay of arbitration, petitioner argued that there was an issue of fact as to whether the tort-feasor had been uninsured, thus calling into question whether the policy protection against uninsured motorists, and its provision for arbitration, was applicable. Special Term rejected the assertion that there were triable issues of fact to be resolved prior to arbitration, and thus denied the stay. We agree with Special Term to the extent that there is no triable issue of fact as to the uninsured status of the offending vehicle. The only documentary evidence submitted by petitioner in support of its assertion that the tort-feasor’s vehicle was insured at the time is a reply to petitioner’s inquiry from the Department of Motor Vehicles, dated January 3, 1981, indicating that the offending vehicle had been insured on the date of its registration in August, 1980, some two months prior to the accident. However, this reply provided no data on insurance in effect as of the date of the accident. Manning’s counsel made their own request for information from the Department of Motor Vehicles, and the reply to that request, dated May 12, 1981, contained the additional information that insurance had not been in effect to cover the offending vehicle on the date of the accident. In the absence of any other evidence in the record, this later document lays to rest any factual issue as to the uninsured status of the tort-feasor. Nevertheless, the judgment must be reversed because any arbitration agreement contained in Country-Wide’s insurance policy issued to Manning is subordinate to DOT’s primary self-insurance covering respondent. Insurance against injury caused by an uninsured motorist is required in this State as a matter of public policy (Insurance Law, § 167, subd 2-a; Matter of Allstate Ins. Co. v Shaw, 52 NY2d 818). Whereas DOT may be authorized to be a self-insurer instead of procuring a policy from an insurer (Vehicle and Traffic Law, § 370), such permission to “self-insure” was not intended by the Legislature as a diminution of the uninsured motorist protection afforded to users of insured vehicles or other persons (Matter of Allstate Ins. Co. v Shaw, 52 NY2d, at p 820). In that case Hertz Corporation, a lessor of vehicles for hire which was authorized to be a self-insurer, was held obligated to provide the drivers and passengers of its leased vehicles with uninsured motorist protection. The self-insurance option authorized by'the Legislature was held not intended to exempt the New York City Transit Authority from the requirement of providing uninsured motorist protection (see Matter of New York City Tr. Auth. [Thom], 70 AD2d 158, affd 52 NY2d 1032). The right to obtain uninsured motorist protection from a self-insurer is no less than the corresponding right under a policy issued by an insurer (Matter of Manhattan & Bronx Surface Tr. Operating Auth. [Coccia], 118 Mise 2d 378; Matter of Manhattan & Bronx Surface Tr. Operating Auth. [Evans], 117 Mise 2d 614). For the same reasons, the exception in subdivision 1 of section 370 of the Vehicle and Traffic Law, permitting the municipality to be a self-insurer, does not exculpate it from the responsibility of providing uninsured motorist protection. Thus the DOT was the primary carrier and there was no obligation to arbitrate with Country-Wide, Manning’s carrier. Concur — Carro, J. P., Silverman, Fein and Kassal, JJ.