The facts are set forth impeccably in the majority opinion, and the problem before us is stated fairly: “ If claimant was an insured under either of the policies issued by the insurers of the Hunt and Halm vehicles, the applicable company must respond; if she was not an insured under either of the two policies, the obligation is that of MVAIC.” But then Justice Steuee, who wrote Cepeda (37 A D 2d 454), departs completely from its logic and finds that, having left a car without intention of returning to it, the claimant became a “ passenger ” in a vehicle which she never entered, though that was her eventual intention, frustrated as it was by the accident that occurred while she was returning to the first car to surrender its registration to the driver who had taken her place. There is no ground for such a holding. The majority’s reasoning may possibly have some basis when it is speculated that perhaps the insurers of the passengers of both vehicles should be required to arbitrate, but there is no ground whatever for making a choice between them and fastening responsi*495bility upon the insurer of the second car. Even the coverage in Cepeda derived solely from status acquired as an immediately prior occupant of the vehicle from which the unfortunate decedent there had descended to investigate a disputed accident. Here there is no such factor, as Special Term correctly found. If there is a gap in the applicable insurance coverage to be afforded claimant it is not to be closed by placing responsibility where it does not exist, but, by the very language of the statute which gave that agency birth, on MVAIC itself. (See subdivision [2] of section 600 of the Insurance Law: “ Declaration of purpose.”)
There is another factor: that this proceeding was rendered necessary by the sole reason that the third vehicle, which hit claimant, was uninsured. Therefore — and this is said with some diffidence in an age when “no fault” has been made a household slogan—responsibility should logically attach to that car rather than to either of the others, and that vehicle, being uninsured, is “ covered ” for this purpose, as statute provides, by MVAIC.
Special Term should be affirmed.
McGivern, J. P., and McNally, J., concur with Steuer, J. ; Markewich, J., dissents in an opinion in which Kupferman, J., concurs.
Judgment, Supreme Court, New York County, entered on April 1, 1971, modified, on the law, by staying arbitration against respondent MVAIC and allowing arbitration against respondent Allstate Insurance Company, and as so modified, affirmed, without costs and without disbursements.