In re the Arbitration between Pawlick & Motor Vehicle Accident Indemnification Corp.

Order unanimously reversed, without costs, and motion for stay of arbitration granted pending the trial of certain preliminary issues of fact in accordance with the following Memorandum: Petitioners claim that they were injured in an automobile accident in February, 1965 through the negligence of one Titus, who, according to their further claim, was an uninsured motorist. Taking advantage of supplemental protection furnished them by a separate instrument, they served notice on appellant and requested claim forms. This was done on *1048January 12,1966 and the forms were mailed on the same day. Some months later and on June 12, 1967 petitioners demanded arbitration of their claims. Appellant’s liability is conditioned upon a contractual provision requiring notice by a claimant “ within ninety days or as soon as practicable ” after the happening of the event. The only proof bearing on the diligence of petitioners is a request of April 17, 1965 to the Motor Vehicle Department requesting information as to the insurance coverage of Titus. When there was no reply a second request was dispatched some eight months later. Triable factual issues are presented (cf. Matter of MVAIC [Malone] 16 N Y 2d 1027; Matter of McGuane [MVAIC] 29 A D 2d 835) and arbitration may proceed only in the event these issues are decided in favor of petitioners. (Appeal from order of Erie Special Term denying motion for stay of arbitration.) Present — Bastow, P. J., Goldman, Del Vecchio, Marsh and Henry, JJ.