
    In the Matter of the Arbitration between Empire Mutual Insurance Company, Respondent, and Max Kohulka; as Administrator of the Estate of John Kohulka, Deceased, Respondent, and Insurance Company of North America, Appellant.
   Order of the Supreme Court, New York County (Asch, J.), entered March 7, 1980, confirming the report of Referee Harry Kraf, filed October 22, 1979, and dismissing the uninsured motorist claim made against Empire Mutual Insurance Company by Max Kohulka, and directing Insurance Company of North America to indemnify its insured Thomas J. Morgan against claims arising out of an automobile accident which occurred on April 18, 1974, unanimously reversed, on the law and the facts, with costs, the application of Empire Mutual to stay arbitration denied, and the petition dismissed. There was no need to determine whether the adjective law of New York or New Jersey, was applicable in resolving the question whether the policy issued by Insurance Company of North America to Morgan was in effect at the time of the accident. The referee failed to give sufficient weight to the admission made by Morgan, through testimony by the attorney who represented him in the negligence suit, that Morgan stated he was uninsured when the accident happened. There was evidence, in the form of a letter from Morgan’s attorney to plaintiff’s counsel, that Morgan had made such statement to his attorney subsequent’to the accident. Supplementing this testimony was evidence from Morgan’s insurance broker that he had received a copy of the notice of the policy’s cancellation that had been mailed to Morgan. The weight of the credible evidence established that the liability policy had already been canceled when the accident occurred. Accordingly, there was proper recourse to the uninsured motorist clause under the policy issued by Empire Mutual Insurance Company. Concur — Murphy, P.J., Kupferman, Birns, Sandler and Fein, JJ.  