IN RE: NEW YORK CENTRAL MUTUAL FIRE INS. CO.

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: NEW YORK CENTRAL MUTUAL FIRE INS. CO., Appellant, v. Esther P. DOUGLAS, Respondent.

Decided: October 29, 2001

DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN and STEPHEN G. CRANE, JJ. Romagnolo & Cambio, LLP, Staten Island, N.Y. (Michael Yoeli of counsel), for appellant.

In a proceeding, inter alia, to stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Richmond County (Lebowitz, J.), dated January 29, 2001, which denied the petition and dismissed the proceeding.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petition is reinstated, and arbitration is stayed pending an evidentiary hearing in accordance herewith.

The Supreme Court erred in denying the petitioner's application, inter alia, for a temporary stay of arbitration.   The petitioner demonstrated that there was an issue of fact as to whether the respondent used reasonable efforts to ascertain the identity of the owner and/or driver of the alleged uninsured vehicle (see, Matter of Tri-State Consumer Ins. Co. v. Dabush, 264 A.D.2d 848, 695 N.Y.S.2d 414;  Matter of American Security Ins. Co. v. Calarco, 85 A.D.2d 693, 445 N.Y.S.2d 488).   Accordingly, the matter must be remitted to the Supreme Court, Richmond County, for an evidentiary hearing on that issue.

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