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

In a special proceeding by the MVAIC to stay arbitration of a claim for personal injury asserted against it by the respondent Robert A. McKelvey pursuant to statute (Insurance Law, § 167, subd. 2-a; § 600 et seq.), the MVAIC appeals from an order of the Supreme Court, Kings County, dated March 22, 1963, which granted the respondent’s motion to set aside as “contrary to the weight of evidence ” the jury’s verdict that physical contact had not occurred between respondent’s vehicle and an unknown vehicle, after a trial of such *686preliminary issue; and which directed a new trial upon the issue. Order reversed, without costs; respondent’s motion denied; verdict reinstated, and proceeding remitted to the Special Term for further action not inconsistent herewith. In our opinion, under all the circumstances, a jury question was fairly presented as to whether contact had occurred between the respondent’s vehicle and an unknown vehicle; hence, it was an abuse of discretion to set aside the jury’s verdict. Ughetta, Acting P. J., Christ, Brennan, Rabin and Hopkins, J'J., concur.