Opinion
2002-03815
Argued February 6, 2003.
March 10, 2003.
In a proceeding pursuant to CPLR article 75, inter alia, to stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Suffolk County (Oliver, J.), entered March 6, 2002, which granted the petition and stayed arbitration.
Simonson Hess Leibowitz, P.C., New York, N.Y. (Edward S. Goodman of counsel), for appellants.
Curtis Vasile Devine McElhenny, Merrick, N.Y. (Brian W. McElhenny and Candace M. Bartone of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., NANCY E. SMITH, HOWARD MILLER, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, that branch of the petition which was for a temporary stay of arbitration pending a hearing is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing on the issue of whether there was any physical contact between the nonparty Howard Druckman's bicycle and an alleged hit-and-run vehicle.
Physical contact is a condition precedent to an arbitration based upon a hit-and-run accident involving an unidentified vehicle (see Insurance Law § 5217; Matter of State Farm Mut. Auto. Ins. Co. v. Johnson, 287 A.D.2d 640). While direct contact between the insured and the unidentified vehicle is not required, the physical contact, as contemplated by Insurance Law § 5217, must involve the continued transmission of force indirectly or simultaneously through an intermediate agency, and the initial impact must be that of a collision between the unidentified vehicle with the complainant, the vehicle occupied by him, an obstruction, or other object causing the bodily injury (see Matter of Smith, 29 N.Y.2d 116, 119; Matter of Allstate Ins. Co. v. Killakey, 78 N.Y.2d 325). Arbitration is not foreclosed when the accident originates with the unidentified vehicle (see Matter of Allstate Ins. Co. v. Killakey, supra; see generally Motor Vehicle Acc. Ind. Corp. v. Eisenberg, 18 N.Y.2d 1).
In this case, the police reports concerning the accident do not state that there was any contact with the unidentified vehicle. The appellants raised an issue of fact in this regard by supplying an affidavit of the nonparty, Howard Druckman, in which Druckman averred that the unidentified motor vehicle abruptly crossed into his path causing a collision between the unidentified vehicle and Druckman's bicycle which then caused a collision between Druckman's bicycle and the injured appellant's bicycle. Under these circumstances, the matter must be remitted to the Supreme Court, Suffolk County, for a hearing to determine if there was physical contact between the unidentified motor vehicle and Druckman's bicycle.
SANTUCCI, J.P., SMITH, H. MILLER and ADAMS, JJ., concur.