In re the Arbitration between Crum & Forster Insurance Companies & Formisano

In a proceeding to stay arbitration of respondent’s claim under the uninsured motorist endorsement of an insurance policy issued him by petitioner, petitioner appeals from a judgment of the Supreme Court, Orange County, entered June 25, 1979, which denied the petition upon a finding that there had been physical contact between the motor vehicle respondent was operating and a "hit and run” vehicle. Judgment affirmed, without costs or disbursements. The record reveals that at the hearing on petitioner’s application to stay arbitration, respondent’s testimony on direct examination that he "felt” the other car hit his truck shortly after he tried to avoid a collision by driving off the road, was inconsistent with evidence adduced on cross-examination of statements he made prior to the hearing to the effect that he had no recollection of the accident. Moreover, although the *865police officer who arrived at the scene shortly after the accident testified on direct examination that respondent told him that his truck was struck by another vehicle, on cross-examination he admitted that no such information was included in his police report of the accident. Notwithstanding such discrepancies, we believe that it was within the discretion of Special Term to resolve the inconsistencies in favor of respondent and find that contact between respondent’s vehicle and a "hit and run” vehicle was supported by a fair preponderance of the credible evidence. Mollen, P. J., Hopkins, Titone and Mangano, JJ., concur.