Opinion
July 14, 1975
In a proceeding to stay arbitration, petitioner appeals from an order of the Supreme Court, Nassau County, dated February 5, 1975, which denied the application. Order reversed, with $20 costs and disbursements, and proceeding remitted to Special Term for a hearing in accordance herewith. Since the papers raise a question of fact as to whether the alleged "hit-and-run" vehicle was insured, a hearing must be held to determine this issue, which is a condition precedent to arbitration (Matter of Weisburgh v MVAIC, 28 A.D.2d 783, 784; State-Wide Ins. Co. v Santiago, 70 Misc.2d 400; Matter of Liberty Mut. Ins. Co. v Chandras, 67 Misc.2d 723, 724; Matter of Klein [MVAIC], 48 Misc.2d 82, 84). Benjamin, Acting P.J., Rabin and Hopkins, JJ., concur; Latham and Munder, JJ., dissent and vote to affirm the order.