Opinion
July 19, 1960
Leo Conrad for petitioner.
Evans, Orr, Gourlay Pacelli for respondent.
One of the conditions contained in respondent's indorsement is that notice of claim be given "within 90 days or as soon as practicable". An issue as to compliance with a condition precedent is for the court, and not for the arbitrators, to decide ( Matter of Board of Educ., Union Free School Dist. No. 7 [ Heckler Elec. Co.], 7 N.Y.2d 476). Petitioner claims that the wording of the arbitration clause is such as to indicate an intention to include questions of performance of conditions precedent within its scope. The arbitration clause covers (1) disagreement as to whether a person making claim under the indorsement "is legally entitled to recover damages from the owner or operator of an uninsured automobile" (italics supplied); and (2) disagreement as to "the amount of payment which may be owing under the indorsement". Coverage number 1 does not apply here, since the question of compliance with a condition precedent relates to the question whether the claimant is legally entitled to recover upon the indorsement from defendant and not to the claimant's right to recover damages from the owner or operator of an uninsured automobile. Coverage number 2 is also inapplicable since the question of performance of a condition precedent is not a question as to the "amount" which may be owing. The motion is granted to the extent of directing a trial of the issue of compliance with the condition above referred to and staying the arbitration pending the court's further order after said trial.