MATTER, INTERBORO MUT. INDEMY. INS. v. WIENER

ORDERED that the order is modified by deleting therefrom the provision denying those branches of the application which were to compel the respondent to submit to both a physical examination and an examination under oath, and to provide authorizations for the release of medical records, and substituting therefor provisions granting those branches of the application, with that discovery to take place after the conclusion of the hearing directed by the order appealed from, and otherwise denying the application; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.

On the record presented, we disagree with the Supreme Court's finding that the petitioner insurance carrier had ample time to seek discovery of the respondent insured as provided for in the underlying insurance policy but unjustifiably failed to do so (see, Matter of Allstate Ins. Co. v. Faulk, 250 A.D.2d 674 ; Matter of Liberty Mut. Ins. Co. v. DeCaro, 244 A.D.2d 487 ). However, such discovery should not occur until after the conclusion of the hearing directed by the order appealed from, at which various threshold procedural issues determinative of whether the arbitration may proceed are to be litigated.

MANGANO, P.J., RITTER, JOY, McGINITY, and SMITH, JJ., concur.