Picciano & Scahill, P.C., Bethpage (Albert J. Galatan of counsel), for appellant.

Law Office of Mark J. Fox, New York (Mark J. Fox of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered November 5, 2018, which denied petitioner's application to stay arbitration under the supplemental underinsured motorist provision of a policy issued to nonparty Josef Traffic Consulting & Expediting Service (Josef), and dismissed the petition, unanimously reversed, on the law, without costs, the petition reinstated, and the matter remanded for a hearing on the issue of whether respondents were "occupying" Josef's van at the time of the accident.

It is for a court, not an arbitrator, to decide the threshold issue of whether respondents were occupying the van, i.e., whether they were "insureds" entitled to demand arbitration (see e.g. Matter of Continental Cas. Co. v Lecei, 47 AD3d 509 [1st Dept 2008]). Unlike the agreement in Matter of Monarch Consulting, Inc. v National Union Fire Ins. Co. of Pittsburgh, PA (26 NY3d 659, 669 [2016]), the arbitration clause in the subject policy does not say that the arbitrator will decide arbitrability.

A framed-issue hearing is required because "there is a genuine triable issue" (Matter of AIU Ins. Co. v Cabreja, 301 AD2d 448, 449 [1st Dept 2003] [internal quotation marks omitted]) as to whether respondents were occupying the van. Concur—Friedman, J.P., Sweeny, Tom, Moulton, JJ. [Prior Case History: 2018 NY Slip Op 32814(U).]