Sicora v. Government Employees Insurance

Appeal from order entered July 7, 1967, dismissed without costs and without disbursements as academic. Order entered September 5, 1967, denying motion to stay arbitration unanimously reversed, on the law, without costs and without disbursements, and arbitration stayed pending hearing on the issue of whether there was contact between the vehicles involved. The sole question on this appeal is whether respondent produced sufficient evidence to raise a triable issue as to whether there was physical *526contact between the two automobiles involved. Respondent submitted an affidavit of an eye witness to the effect that there was no actual contact. In addition, certain negative testimony, not in itself controlling of the question but supporting the witness’ affidavit, was submitted. Later the eye witness, in an affidavit given to petitioner, qualified his prior affidavit. We may not make a determination as to which of his statements more accurately states the facts. Much less, in view of this discrepancy, can we say that no issue has been presented Concur — • Stevens, J. P., Steuer, Capozzoli, Tilzer and McNally, JJ.