Ordered that the order is modified, on the law, by deleting the phrase "the court in Casanova v New York Telephone" and substituting therefor the phrase "this court"; as so modified, the order is affirmed, with costs to the appellant, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.
Inasmuch as the petitioner insurer is not a party to the personal injury action commenced by the appellant against the alleged owner and operator of the offending vehicle, New York Telephone, neither the doctrine of collateral estoppel nor that of res judicata can be invoked to bind it to a determination therein (American Motorists Ins. Co. v North Country Motors, 57 A.D.2d 158, 160; Siegel, N Y Prac §§ 443, 458). Where, as here, there exists a genuine, nonarbitrable, threshold issue, the appropriate procedure is to stay arbitration pending a resolution of that issue at an evidentiary hearing or a preliminary trial (Matter of Public Serv. Mut. Ins. Co. [Binder], 121 A.D.2d 903; Matter of Empire Mut. Ins. Co. [Zelin], 120 A.D.2d 365; Matter of National Gen. Ins. Co. [Makofske], 100 A.D.2d 905; Matter of Aetna Cas. Sur. Co. v Smith, 100 A.D.2d 751). Accordingly, arbitration is stayed pending resolution of the nonpermissive use issue at an evidentiary hearing to be conducted in the Supreme Court, Kings County, at which the operator and owner/self-insurer of the offending vehicle can be subpoenaed to testify. Kunzeman, J.P., Weinstein, Kooper and Balletta, JJ., concur.