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FREDERICK ZELANKA ET AL. v. MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION (06/30/69)

June 30, 1969

FREDERICK ZELANKA ET AL., RESPONDENTS,
v.
MOTOR VEHICLE ACCIDENT INDEMNIFICATION CORPORATION, APPELLANT



In a proceeding by appellant to stay arbitration of respondents' claims, the appeal is from a judgment of the Supreme Court, Queens County, dated January 15, 1969, which denied the application and directed the parties to proceed to arbitration.

Beldock, P. J., Christ, Rabin, Munder and Martuscello, JJ., concur.

In our opinion, the "Order of Revocation of Non-Resident Motor Vehicle Privileges" (Form SR-11F) submitted by respondents was sufficient, in the absence of proof to the contrary, to establish that the vehicle which allegedly caused the accident out of which this claim arose was uninsured at the time of the accident (Matter of Foster [ MV AIC ], 55 Misc. 2d 784, 786-788; cf. Matter of Smalls [ MV AIC ], N. Y. L. J. Feb. 15, 1968, p. 16, col. 5; Matter of Wassenaar [ MV AIC ], N. Y. L. J. Dec. 19, 1967, p. 16. col. 1). However, it was error to deny appellant a jury trial on this issue (Matter of MV AIC [ Malone ], 16 N.Y.2d 1027), during the course of which appellant would be afforded an opportunity to submit its proof, if any, that the automobile involved was, in fact, insured.

Disposition

Judgment reversed, on the law and the facts, without costs, and proceeding remitted to the Special Term for further proceedings not inconsistent with the views expressed herein.

19690630

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