Summary
In Matter of Zurich Ins. Co. (Camera) (14 A.D.2d 669), we specifically refused to follow the contrary ruling in the Third Department (Matter of Phoenix Assur. Co. of N Y [ Digamus], 9 A.D.2d 998) and held that the scope of the arbitration clause reaches all issues of fact and law pertaining to legal liability of the insurer arising under the indorsement and other terms of the policy.
Summary of this case from Motor Vehicle Acc. v. VelezOpinion
September 21, 1961
Order, entered on June 7, 1961, denying petitioner's application to stay arbitration, unanimously affirmed, with $20 costs and disbursements to respondent. The question presented is the scope of the arbitration as to legal liability under the terms of an uninsured motorist protection indorsement to an automobile liability insurance policy. We are not unmindful that the Third Department in Matter of Phoenix Assur. Co. ( Digamus) ( 9 A.D.2d 998), has held that such arbitration "is limited to the issue of negligence and the resulting question of damage." This court, however, in Matter of Royal Ind. Co. ( McMahon) ( 10 A.D.2d 926), declared the rule for this Department to be that the arbitration provisions in the indorsement are not so limited in scope but may extend to other questions of law and fact pertaining to the eligibility of the injured party to recover. In so doing we disapproved the Special Term determination in Matter of American Nat. Fire Ins. Co. ( McCormack) ( 15 Misc.2d 692). Motion for a stay dismissed, having become academic by virtue of the decision of this court decided herein.
Concur — Botein, P.J., Breitel, Rabin, Eager and Noonan, JJ.