Opinion
July 5, 1977
In a proceeding to stay arbitration, petitioner appeals from an order of the Supreme Court, Queens County, entered March 1, 1977, which denied the application and dismissed the petition. Order reversed, on the law, without costs or disbursements, and petition granted. In a proceeding against an insurer under an uninsured motorist arbitration clause, where a threshold question of fact is raised as to whether the motorist is actually insured, it is settled law that such narrow issue of fact is to be adjudicated by the trial court, and not the arbitrator (see Matter of Rosenbaum [American Sur. Co. of N.Y.], 11 N.Y.2d 310, 313-314; Pearl St. Dev. Corp. v Conduit Foundation Corp., 41 N.Y.2d 167, 170). Special Term's reliance on Matter of Nassau Ins. Co. v McMorris ( 53 A.D.2d 694), since affirmed by the Court of Appeals ( 41 N.Y.2d 701), as authority for the contrary position is misplaced inasmuch as the decision in that case clearly referred to the no-fault arbitration agreement and specifically exempted the uninsured motorist arbitration clause from the scope of its holding. Latham, J.P., Shapiro, Hawkins and Suozzi, JJ., concur.