State Farm Mutual Automobile Insurance v. Blumen

In a proceeding pursuant to CPLR article 75 *753to stay arbitration of an uninsured motorist claim, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated May 10, 1993, as denied, without a hearing, that portion of the petition which requested a permanent stay of arbitration.

Ordered that the order is reversed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

We find that a triable issue of fact exists regarding whether the offending vehicle was insured at the time of the accident. That issue should be resolved after a hearing (see, Matter of Eagle Ins. Co. v Tichman, 185 AD2d 884, 886; National Grange Mut. Ins. Co. v Diaz, 111 AD2d 700; Matter of Eagle Ins. Co. v Olephant, 81 AD2d 886; Matter of Home Indem. Co. v Scricca, 147 AD2d 697, 698; Matter of Paramount Ins. Co. v Moctezuma, 201 AD2d 652, 653). Bracken, J. P., Balletta, Ritter, Pizzuto and Florio, JJ., concur.