Lumbermen's Mutual Casualty Co. v. McZorn 40 A.D.2d 680

In a proceeding to stay arbitration, petitioner appeals from an order of the Supreme Court, Orange County, entered December 28, 1971, which denied the application, without a hearing. Order reversed, without costs, and proceeding remitted to Special Term for a jury trial in accordance with the views herein set forth. Petitioner sought to stay arbitration demanded by respondents pursuant to the uninsured automobile indorsement on the automobile liability insurance policy which it had issued to respondent Herman McZorn. The ground relied on by petitioner is that the occurrence involved is not within the policy and that there is, therefore, no arbitrable dispute. The issue involves a question of whether the driver of the truck which struck the vehicle occupied by respondents had wrongfully appropriated the truck. Accordingly, a jury trial should be had on this issue (Matter of MV AIC [Malone], 16 N Y 2d 1027; Zelanka v. MV AIC, 32 A D 2d 847).—Munder, Acting P. J., Latham, Gulotta, Christ and Benjamin, JJ., concur.