In re the Arbitration between Motor Vehicle Accident Indemnification Corp. & Post

Order, entered on September 5, 1962, denying motion to stay arbitration, unanimously reversed on the law and the facts, with $20 costs and disbursements to appellant, and a hearing ordered. Appellant, MVAIC, moved to stay arbitration until there was determination after a hearing by the court that the accident involved contact with an uninsured vehicle. Appellant claims no such contact was involved. Special Term correctly held that such an issue requires a hearing (Matter of Rosenbaum, [American Sur. Co. of N. Y.], 11 N Y 2d 310; Matter of Motor Vehicle Acc. Ind. Corp. [Downey], 11 N Y 2d 995), but held that the affidavits did not set forth sufficient evidentiary facts to raise an issue. Where the facts are peculiarly within the knowledge of one party, a slight degree of proof is sufficient to raise an issue. Under this test, the proof submitted was ample, in fact it exceeded that submitted in Matter of Rosenbaum (supra). Concur — Rabin, J. P., McNally, Stevens, Eager and Steuer, JJ.