SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 6, 1968
IN THE MATTER OF THE ARBITRATION BETWEEN LINDA SORG, RESPONDENT, AND MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, APPELLANT
In a proceeding to compel arbitration of petitioner's claim for personal injuries, Motor Vehicle Accident Indemnification Corporation appeals from so much of an order of the Supreme Court, dated May 4, 1967, made in Westchester County and entered in Putnam County, as denied its application to stay the proceeding until petitioner would establish that her notice of claim was timely filed.
Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.
No questions of fact were considered on this appeal. By implication, the order of Special Term provided that the question of whether petitioner had filed timely notice with appellant was to be submitted to the arbitrators under the arbitration agreement contained in petitioner's automobile insurance policy. However, the question of timely notice is not within the scope of the arbitration clause and cannot be submitted to the arbitrators (Matter of Motor Vehicle Acc. Ind. Corp. [ Brown ], 15 A.D.2d 578; cf. Matter of Rosenbaum [ American Sur. Co. of N. Y.], 11 N.Y.2d 310). A hearing is required to determine the preliminary issue concerning timely filing (Matter of Ryan v. MVAIC, 22 A.D.2d 949).
Order reversed insofar as appealed from, on the law, without costs; appellant's said application granted; and proceeding remitted to the Special Term in Putnam County for proceedings not inconsistent herewith.
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