
    In the Matter of Allstate Insurance Company, Appellant, v Harry Greenberg, Respondent, and Meritplan Insurance Company, Additional Respondent.
   In a proceeding to stay arbitration, petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Graci, J.), dated July 13, 1981, which, inter alia, denied the application. Order and judgment affirmed, with one bill of $50 costs and disbursements. Trial Term properly found that the driver of the moped involved in this accident was using the vehicle without permission. Since the sole question raised in the petition related to whether the operator had such permission, it was improper for the court to consider the question of whether or not the notice of disclaimer was timely. However, since the court determined that the notice was timely, its ultimate conclusion that the parties should proceed to arbitrate was correct and therefore need not be disturbed. Titone, J. P., Mangano, Bracken and Boyer, JJ., concur.  