In re the Arbitration between New York Central Mutual Fire Insurance & Guarino

—Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding seeking a permanent stay of arbitration on the *983ground that respondents failed to provide timely written notice of their claim for supplemental uninsured motorist (SUM) benefits under a policy issued by petitioner. Supreme Court erred in ordering that petitioner’s application for a stay of arbitration be referred to an arbitrator. The issue of timeliness is for the court, not the arbitrator, to decide (see, e.g., Matter of Nationwide Ins. Co. [Brown-Young], 265 AD2d 918; Matter of Travelers Ins. Co. [DeLosh], 249 AD2d 924, 925-926; see generally, Matter of Rosenbaum [American Sur. Co.], 11 NY2d 310, 313-314). Concerning the merits, we conclude that this record presents an issue of fact whether respondents gave notice of the claim “[a]s soon as practicable,” as required by the policy (see, Matter of Hartford Cas. Ins. Co. [Brody], 278 AD2d 830; Matter of Travelers Ins. Co. [DeLosh], supra, at 926). We therefore reverse the order and remit the matter to Supreme Court for a hearing to determine whether respondents gave notice in a timely manner (see, Matter of Hartford Cas. Ins. Co. [Brody], supra', Matter of State Farm Mut. Auto. Ins. Co. [Hernandez], 275 AD2d 989, 989-990; Matter of Travelers Ins. Co. [DeLosh], supra, at 926). (Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Arbitration.) Present — Pigott, Jr., P. J., Pine, Wisner, Hurlbutt and Kehoe, JJ.