
    (October 7, 1985)
    Celestine Ashe et al., Appellants, v Genway Corp., Respondent, et al., Defendants.
   In a personal injury action, plaintiffs appeal from an order of the Supreme Court, Kings County (Duberstein, J.), dated September 9, 1985, which denied their motion to strike that portion of defendant Genway Corp.’s answer which denied permissive use of the offending vehicle by the individual defendant, Carl Lawrence. (We treat plaintiffs’ notice of appeal as a premature notice of appeal from the order.)

Order affirmed, with costs.

The issue of whether the offending vehicle was operated with the permission of the owner was not determined in the prior proceeding brought to stay arbitration of the uninsured motorist claim. Accordingly, defendant Genway Corp. is not barred from raising the issue of permissive use in the instant action. Thompson, J. P., Niehoff, Lawrence and Kunzeman, JJ., concur.  