SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 5, 1968
IN THE MATTER OF THE ARBITRATION BETWEEN WILLIAM J. MURPHY, JR., AS ADMINISTRATOR OF THE ESTATE OF WILLIAM J. MURPHY, SR., DECEASED, APPELLANT, AND MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, RESPONDENT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.
Memorandum by the Court. Appeal from so much of an order of the Supreme Court at Special Term as granted respondent's motion to stay arbitration pending trial by jury of the question whether claimant's intestate was an "innocent victim" of an accident involving an unidentified motor vehicle, within the meaning of section 600 of the Insurance Law. It has now been authoritatively determined that by "innocent" is meant "without fault", in the sense of negligence proximately causing the injury, and hence that a finding thereon is to be made by the arbitrator and not by a court as a condition precedent to arbitration. (Matter of Nagle [MVAIC], 22 N.Y.2d 165.)
Order, insofar as appealed from, modified, on the law, in accordance herewith, and, as so modified, affirmed, and motion for preliminary trial of question of "innocent victim" status denied, with costs to appellant.
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