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

Judgment entered November 20, 1968, dissolving an earlier stay of arbitration and directing the parties to proceed to arbitration, affirmed, with $30 costs and disbursements to the respondent. Whether there had been physical contact with an unknown vehicle at the time of the accident involving the claimant was a question of fact for the Trial Judge. The claimant and one Louis Collina, a disinterested witness, both testified unequivocally that there was physical contact between claimant’s automobile and another automobile which left the scene of the accident before it could be identified. The trial court found that claimant had sustained his burden of proving physical contact with another automobile. This finding is supported by substantial evidence and should not be disturbed on appeal. Concur—Eager, J. P., Capozzoli and Nunez, JJ.; McNally and Steuer, JJ., dissent in the following memorandum by Steuer, J.: We dissent. We believe Trial Term’s finding of contact between claimant’s automobile and the unidentified vehicle is not only against the weight of the credible evidence but that respondent did not sustain the burden of proof. The statement given by the eyewitness denies knowledge of such contact, and it is quite clear from his testimony that if there had been contact in the way that he testified, he could not have seen it. Furthermore, in all reports submitted on behalf of claimant no contact is asserted and the fact of contact is, at least inferentially, belied. The mere statement, though made under oath, that there was contact, does not sustain the finding.