Opinion
Submitted October 19, 1999
December 2, 1999
In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Nassau County (Lockman, J.), dated October 16, 1998, which denied the petition without a hearing.
Martin, Fallon Mull counsel), for appellant.Huntington, N Y (Richard C. Mull
Parker Waichman (DiJoseph, Portegello Schuster, P.C., New York, N.Y. [Arnold E. DiJoseph III] of counsel), for respondent.
DAVID S. RITTER, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the order is reversed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.
A triable issue of fact was raised as to whether the vehicle owned and operated by Anna Bou was insured by the Colonial Penn Insurance Company at the time of the accident. Accordingly, that issue should be resolved at a hearing (see, American Transit Insurance Co. v. Story, ___ A.D.2d ___; [1st Dept., Apr. 15, 1997];Matter of State Farm Mut. Auto. Ins. Co. v. Fenelon, 202 A.D.2d 436 ;Matter of Eagle Ins. Co. v. Tichman, 185 A.D.2d 884 ; Matter of Empire Mut. Ins. Co. v. Greaney, 156 A.D.2d 154 ).
RITTER, J.P., JOY, GOLDSTEIN, and McGINITY, JJ., concur.