In re the Arbitration between Braddy & Continental Insurance

Order entered July 10, 1967, herein appealed from, unanimously reversed, on the law, without costs or disbursements, and the matter remanded to Special Term for the submission of further affidavits by claimant to establish, prima facie, actual physical contact between the vehicle occupied by claimant and the alleged hit-and-run vehicle. The burden was upon claimant to show, at least prima facie, that actual physical contact occurred (cf. Matter of MVAIG [Post], 18 A D 2d 905). This burden could have been met, and may yet be met, by claimant’s affidavit to that effect. Affidavit of counsel without knowledge of the facts, or even the police aided card when the officer making such card was not a witness to the occurrence, will not- suffice when the issue of actual physical contact is raised. Leave is granted appellant to submit any proof it might have that no physical contact occurred as claimed and if a triable issue be raised, that issue should then be resolved by trial. Concur— Stevens, J. P., Eager, Steuer, Rabin and McGivern, JJ.