In re the Arbitration between Allcity Insurance & Guy , 97 A.D.2d 374 ( 1983 )

Judgment entered July 8, 1982 in Supreme Court, New York County (Eugene Wolin, J.; Shanley Egeth, J. [deceased], at trial), which, inter alia, directed appellant Liberty Mutual Fire Insurance Co. to defend respondent Lockley in an action against her by respondent Guy, reversed, on the law, judgment is vacated, appellant Liberty Mutual is ordered joined as a necessary party and the matter is remanded to Trial Term for a de novo determination of whether or not the Lockley vehicle was insured by Liberty at the time of the accident, and the temporary stay of arbitration is continued pending resolution of the issue, all without costs. The statutory vehicle for staying arbitration “may not be used to obtain jurisdiction over a nonparty” (Matter of American Security Ins. Co. v Stanley, 86 AD2d 834). Liberty Mutual was never properly served in this action and though it appeared specially, showing that it had actual notice, Trial Term’s direction that it proceed to trial did not amount to an order of joinder under CPLR 1003. The trial that was held was not transcribed so we have no record upon which to assess the findings of fact which form the basis for the judgment appealed from. Accordingly, we vacate that judgment, sua sponte order joinder of Liberty Mutual (CPLR 1003; Judson v Central Vt. R. R. Co., 158 NY 597), and direct a new trial to determine whether or not arbitration between petitioner Allcity and respondent Guy should proceed. Concur — Sullivan, Carro, Milonas and Alexander, JJ.