
    In the Matter of the Arbitration between Motor Vehicle Accident Indemnification Corporation, Appellant, and Frank Rosa et al., Respondents.
   Order entered March 8, 1963, unanimously reversed on the law and the facts, with $20 costs and disbursements to appellant, and application by petitioner to stay arbitration granted to the extent that arbitration shall be stayed pending respondents’ examination under oath pursuant to the provisions of the New York Automobile Accident Indemnification Endorsement, such examination to be held on a day and place to be fixed in the order to be settled hereon. The insurer alleged to cover the negligently driven vehicle disclaimed liability on September 11, 1961, and on December 19, 1961, physical examinations of the respondents were conducted on behalf of the petitioner. Thereafter, the petitioner asserts that its repeated requests to attempt to mutually settle the respondents’ claims were thwarted; but, on the other hand, the respondents allege that petitioner would never discuss adjustment. In any event, it does not factually appear that the petitioner is chargeable with such loches in the matter of its handling of the claims as to amount to bad faith or that the respondents have been prejudiced in any substantial manner by petitioner’s failure to expeditiously proceed with their oral examination. Promptly, when respondents demanded arbitration in January, 1963, the petitioner requested that they appear for an examination under oath as required by the MVAIC indorsement. Under the circumstances, there was no loss or waiver of petitioner’s contractual right to such an examination. (See Matter of Motor Vehicle Acc. Ind. Gorp. [Lucash], 16 A D 2d 975.) The decision of Matter of Smith (MVAIO) (18 A D 2d 889) is clearly distinguishable and not controlling on the facts here. Settle order on notice. Concur — Botein, P. J., Rabin, McNally, Stevens and Eager, JJ.  