IN RE: TRAVELERS INSURANCE COMPANY (2008)

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, the appeal is from an order of the Supreme Court, Orange County (McGuirk, J.), dated August 23, 2006, which granted the petition and permanently stayed the arbitration.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for further proceedings in accordance herewith.

Contrary to the Supreme Court's conclusion, the vehicle in which the appellant's decedent was killed was an uninsured motor vehicle (see Rowell v. Utica Mut. Ins. Co., 77 N.Y.2d 636, 639, 569 N.Y.S.2d 399, 571 N.E.2d 707;  Matter of Liberty Mut. Ins. Co. v. Saravia, 271 A.D.2d 534, 705 N.Y.S.2d 685).

Furthermore, under the circumstances presented, we conclude that the Supreme Court should have conducted a hearing to determine whether the appellant's decedent was an “insured” within the meaning of the subject policy (cf. Matter of Liberty Mut. Ins. Co. v. Saravia, 271 A.D.2d 534, 705 N.Y.S.2d 685;  Matter of Graphic Arts Mut. Ins. Co., 214 A.D.2d 976, 626 N.Y.S.2d 916).   Accordingly, we remit the matter for such a hearing and thereafter, for a new determination of the petition to permanently stay arbitration of the uninsured motorist claim.