IN RE: The HANOVER INSURANCE COMPANY (2008)

Order and judgment (one paper), Supreme Court, New York County (Lottie E. Wilkins, J.), entered August 22, 2007, granting the petition brought pursuant to CPLR article 75 to permanently stay uninsured motorist arbitration, unanimously affirmed, without costs.

 Physical contact is a condition precedent to the arbitration of this uninsured motorist claim, and whether or not there was physical contact between the insured vehicle and an alleged “hit and run” vehicle is an issue of fact to be decided by the court (see Matter of Empire Mut. Ins. Co. [Zelin], 120 A.D.2d 365, 502 N.Y.S.2d 20 [1986];  see also Lumbermens Mut. Cas. Co. v. Nespolini, 281 A.D.2d 365, 722 N.Y.S.2d 166 [2001] ).   Here, the evidence at the framed-issue hearing establishes that the court's determination that the vehicle driven by respondent did not come into contact with another vehicle at the time of the accident was supported by a fair interpretation of the evidence, and there is no basis to disturb the hearing court's credibility determinations (see e.g. Claridge Gardens v. Menotti, 160 A.D.2d 544, 554 N.Y.S.2d 193 [1990] ).   Respondent acknowledged that he told the police officer who responded to the scene of the accident that he had only been cut off, and the police report, which was entered into evidence without objection, is consistent with respondent's testimony.