
    (June 23, 1994)
    In the Matter of State Farm Mutual Automobile Insurance Co., Respondent, v Harold Klein, Appellant.
    [613 NYS2d 678]
   On the Court’s own motion, its unpublished decision and order in this case, dated June 20, 1994, is recalled and vacated and the following decision and order is substituted therefor:

In a proceeding pursuant to CPLR article 75 to stay arbitration, inter alia, of an uninsured motorist claim, Harold Klein appeals from a judgment of the Supreme Court, Queens County (Kassoff, J.), dated September 1, 1992, which granted the petition, permanently stayed arbitration of the uninsured motorist claim, and adjudged that Colonial Penn Insurance Company insured the offending vehicle at the time of the accident.

Ordered that the judgment is affirmed, with costs.

We reject the appellant’s contention that there was no evidence presented at the hearing to justify the court’s finding that the offending vehicle was insured at the time of the accident. At the hearing the appellant’s attorney conceded that a representative of Colonial Penn Insurance Company admitted in chambers, in the presence of the court and counsel, that it insured the offending vehicle at the time of the accident. This concession in conjunction with counsel’s failure to object or present evidence to the contrary, amounted to an effective stipulation on the issue (see, CPLR 2104).

Mr. Klein also purportedly appeals from an order of the same court dated February 28, 1992, which directed a hearing on the petition at which it was subsequently determined that Colonial Penn Insurance Company insured the offending vehiele. Although a notice of appeal was filed from the order dated February 28, 1992, the appeal was ultimately dismissed on November 24, 1992, for failure to perfect the same in accordance with the rules of this Court. Sullivan, J. P., Lawrence, Pizzuto, Joy and Goldstein, JJ., concur.  