In the Matter of the Arbitration between New York Central Mutual Fire Insurance Company, Respondent, and Sue Guarino et al., Appellants

—Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Petitioner commenced this proceeding seeking a permanent stay of arbitration on the ground that respondents failed to provide timely written notice of their claim for supplemental uninsured motorist (SUM) benefits under a policy issued by petitioner. Supreme Court erred in ordering that petitioner’s application for a stay of arbitration be referred to an arbitrator. The issue of timeliness is for the court, not the arbitrator, to decide (see, e.g., Matter of Nationwide Ins. Co. [Brown-Young], 265 AD2d 918; Matter of Travelers Ins. Co. [DeLosh], 249 AD2d 924, 925-926; see generally, Matter of Rosenbaum [American Sur. Co.], 11 NY2d 310, 313-314). Concerning the merits, we conclude that this record presents an issue of fact whether respondents gave notice of the claim “[a]s soon as practicable,” as required by the policy (see, Matter of Hartford Cas. Ins. Co. [Brody], 278 AD2d 830; Matter of Travelers Ins. Co. [DeLosh], supra, at 926). We therefore reverse the order and remit the matter to Supreme Court for a hearing to determine whether respondents gave notice in a timely manner (see, Matter of Hartford Cas. Ins. Co. [Brody], supra, Matter of State Farm Mut. Auto. Ins. Co. [Hernandez], 275 AD2d 989, 989-990; Matter of Travelers Ins. Co. [DeLosh], supra, at 926). (Appeal from Order of Supreme Court, Niagara County, Joslin, J. — Arbitration.) Present — Pigott, Jr., P. J., Pine, Wisner, Hurlbutt and Kehoe, JJ.