IN RE: AIU INSURANCE COMPANY (2005)

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the appeal is from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated July 6, 2004, as, in effect, granted that branch of the petition which was for a temporary stay of arbitration pending a hearing to determine whether there was physical contact between the appellants' vehicle and the alleged hit-and-run vehicle.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the petition is denied, and the proceeding is dismissed.

Contrary to the petitioner's contention and the determination of the Supreme Court, the petitioner's claim that arbitration should be stayed on the ground that there was no physical contact between the appellants' vehicle and the hit-and-run vehicle does not relate to whether the parties had an agreement to arbitrate (see generally Matter of Matarasso, 56 N.Y.2d 264, 451 N.Y.S.2d 703, 436 N.E.2d 1305).   Rather, the issue of physical contact relates to whether certain conditions of the insurance contract were complied with, and therefore had to be asserted within the 20-day time limit set forth in CPLR 7503(c) (see Matter of Steck, 89 N.Y.2d 1082, 659 N.Y.S.2d 839, 681 N.E.2d 1285;  Matter of Merchants Mut. Ins. Co. v. Anemone, 271 A.D.2d 690, 707 N.Y.S.2d 865;  Matter of Allstate Ins. Co. v. Taylor, 271 A.D.2d 443, 706 N.Y.S.2d 135;  Matter of DelGaudio v. Aetna Ins. Co., 262 A.D.2d 641, 692 N.Y.S.2d 473;  Matter of Nationwide Ins. Co. v. McDonnell, 248 A.D.2d 476, 668 N.Y.S.2d 920;  Matter of CNA Ins. Co. v. Carsley, 243 A.D.2d 474, 663 N.Y.S.2d 92).   Accordingly, the petition to stay arbitration, which was served well beyond the 20-day statutory period, was untimely and should have been dismissed.