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

Order, entered on November 20, 1961, denying petitioner-appellant’s motion to stay arbitration, unanimously modified, on the law, to the extent of remanding the proceeding to Special Term for a hearing on the issue of whether a hit-run vehicle was involved, and is otherwise affirmed, with $20 costs and disbursements to respondent. Special Term correctly held that respondent is an “ insured ” (Insurance Law, § 167, subd. 2-a). However, the affidavits raise a question of fact whether a hit-run vehicle was involved. That question is not for the arbitrators but for Special Term (Matter of Rosenbaum [Amer. Sur. Co., N. Y.], 11 N Y 2d 310 ; Matter of Motor Vehicle Acc. Ind. Corp. [Downey], 11 N Y 2d 995 ). Concur — Breitel, J. P., Valente, Stevens, Steuer and Bergan, JJ.