| Matter of Hanover Ins. Co. v Lewis |
| 2008 NY Slip Op 09454 [57 AD3d 221] |
| December 2, 2008 |
| Appellate Division, First Department |
| In the Matter of The Hanover Insurance Company,Respondent, v Robert Lewis, Appellant. |
—[*1] Goldman & Grossman, New York (Eleanor R. Goldman of counsel), forrespondent.
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 topermanently 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 andrun" vehicle is an issue of fact to be decided by the court (see Matter of Empire Mut. Ins. Co.[Zelin], 120 AD2d 365 [1986]; see also Lumbermens Mut. Cas. Co. v Nespolini, 281AD2d 365 [2001]). Here, the evidence at the framed-issue hearing establishes that the court'sdetermination that the vehicle driven by respondent did not come into contact with anothervehicle at the time of the accident was supported by a fair interpretation of the evidence, andthere is no basis to disturb the hearing court's credibility determinations (see e.g. ClaridgeGardens v Menotti, 160 AD2d 544 [1990]). Respondent acknowledged that he told thepolice officer who responded to the scene of the accident that he had only been cut off, and thepolice report, which was entered into evidence without objection, is consistent with respondent'stestimony. Concur—Mazzarelli, J.P., Saxe, Catterson, Renwick and Freedman, JJ.