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In re the Arbitration Between Lion Insurance & Clutchker

58 A.D.2d 811 Court N.Y. App. Div. Decision date 1977-07-05 English

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In the Matter of the Arbitration between Lion Insurance Company, Appellant, and Marion Clutchker et al., Respondents.

In a proceeding to stay arbitration, petitioner appeals from an order of the Supreme Court, Queens County, entered March 1, 1977, which denied the application and dismissed the petition. Order reversed, on the law, without costs or disbursements, and petition granted. In a proceeding against an insurer under an uninsured motorist arbitration clause, where a threshold question

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of fact is raised as to whether the motorist is actually insured, it is settled law that such narrow issue of fact is to be adjudicated by the trial court, and not the arbitrator (see Matter of Rosenbaum [American Sur. Co. of N. Y], 11 NY2d 310 , 313-314; Pearl St. Dev. Corp. v Conduit & Foundation Corp., 41 NY2d 167 , 170). Special Term’s reliance on Matter of Nassau Ins. Co. v McMorris ( 53 AD2d 694 ), since affirmed by the Court of Appeals ( 41 NY2d 701 ), as authority for the contrary position is misplaced inasmuch as the decision in that case clearly referred to the no-fault arbitration agreement and specifically exempted the uninsured motorist arbitration clause from the scope of its holding.

Latham, J. P., Shapiro, Hawkins and Suozzi, JJ., concur.

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