
    Aetna Casualty & Surety Company, Appellant, v James Pooser et al., Respondents.
   Order and judgment (one paper), Supreme Court, New York County, entered November 6, 1978, which denied petitioner Aetna Casualty & Surety Company’s application for a stay of arbitration, unanimously reversed, on the law, without costs and disbursements; the application is granted to the extent of directing a trial on the preliminary issues of limitations of notice of claim and the insurance status of the alleged offending vehicle, with leave to petitioner to join the owner of the alleged offending vehicle and Boston Old Company Insurance Co. as parties to the proceeding, and the matter is remanded for such hearing. On this record it is clear that preliminary issues are raised warranting a trial to determine whether or not the claimant Pooser gave timely notice of claim to petitioner, and whether or not the alleged offending vehicle was uninsured at the time of the accident. Petitioner did not avail itself of the respondents’ consent to a hearing on these preliminary issues and withdraw the appeal, which would have avoided needless delay, and to this extent its conduct is unjustified. Concur—Murphy, P. J., Sullivan, Markewich, Lupiano and Silverman, JJ.  