Opinion
October 1, 1964
Order entered April 13, 1964, denying respondent's motion for a stay of arbitration, unanimously reversed, on the law and on the facts, with $30 costs and disbursements to the appellant, and the motion granted, with $10 costs. Section 617 of article 17-A of the Insurance Law provides, in part, as follows: "The protection provided by this article shall not apply * * * unless the bodily injury to the insured or qualified person arose out of physical contact of the motor vehicle causing such bodily injury". There was an absence of physical contact between the offending vehicle and that of claimants. Hence, respondent-appellant is entitled to a stay of arbitration. ( Matter of MVAIC [ Stern], 21 A.D.2d 856; Matter of MVAIC [ Lupo], 18 A.D.2d 717, affd. 13 N.Y.2d 1017).
Concur — Breitel, J.P., Valente, McNally, Eager and Steuer, JJ. [ 42 Misc.2d 786.]