In re the Arbitration Between Empire Mutual Insurance & Wenz

Order, entered on October 9, 1969, denying reconsideration of petitioner’s motion to stay arbitration, unanimously reversed on the law, with $30 costs and disbursements to the appellant, and motion granted to the extent of directing a hearing on the issue of the validity of respondent, Country Wide Insurance Company’s unilateral disclaimer. Appeal from order entered September 3, 1969, is dismissed as academic. The disclaimer is based upon failure to give timely notice of accident or suit and lack of co-operation. The papers submittted in support of the motion for reconsideration allege that the offending vehicle had omnibus or taxi state license plates, that it was insured by respondent insurer under the assigned risk plan and that failure to report an accident or forward suit papers to a carrier is not a defense under a taxi insurance policy. Moreover, it appears that the claimants gave said respondent notice of the accident and that it did not disclaim for almost six months. Sufficient has been shown to require a hearing on the issues raised. Concur — Capozzoli, J. P., McGivern, Nunez. McNally and Tilzer, JJ.