SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
April 25, 1968
IN THE MATTER OF THE ARBITRATION BETWEEN LOUISE MURINO, RESPONDENT, AND MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, APPELLANT; EMPIRE MUTUAL INSURANCE COMPANY, RESPONDENT
Concur -- Botein, P. J., Stevens, Capozzoli, Tilzer and McNally, JJ.
Order entered on December 15, 1967, unanimously reversed, on the law and the facts, with $30 costs and disbursements to respondent-appellant against respondent-respondent, the matter is remanded to Special Term for a hearing to determine whether the disclaimer by respondent-respondent was valid, and the arbitration is stayed pending such determination. Sufficient controversy exists concerning the time of receipt of notice of the accident by the insurer to preclude a finding on that issue without a trial. Special Term's exclusive reliance on the insurer's version of the time of receipt was error in view of the factual statements by the other parties indicative of earlier notification. The insurer's contention regarding waiver is likewise a matter to be reserved for hearing.
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