Greenberg, the defendant, appeals from a summary judgment entered against him under Mass.R.Civ.P. 56, 365 Mass. 824 (1974). The affidavit in support of the plaintiff's motion for summary judgment and the defendant's counter affidavit raise a genuine and material issue of fact: whether the defendant, a lawyer, had notice, when he received settlement proceeds on behalf of a client whom he represented in a motor vehicle tort action, of the plaintiff National Union Fire Insurance Company's subrogation rights to the property damage component of the aggregate settlement proceeds. Whether Greenberg knew of the plaintiff's subrogation claim would have been decisive. General Exch. Ins. Corp. v. Driscoll, 315 Mass. 360 (1944). The plaintiff's affidavit and the defendant's counter affidavit put that very question in issue, and the defendant was, therefore, entitled to a hearing on the merits. Stetson v. Selectmen of Carlisle, 369 Mass. 755 , 763-764 (1976). Perry v. Schlaikjer, 5 Mass. App. Ct. 866 (1977). Kaplan v. Birger, 5 Mass. App. Ct. 878 (1977).

Judgment reversed.

The plaintiffs seek to set aside arbitration awards under margin account agreements they made with two stock brokerage firms. Neither of the contentions made by the plaintiffs on appeal has any merit. 1. The contention that the judge did not make adequate findings relative to the "execution and authenticity" of the arbitration agreements at the hearing in 1976 on the defendants' motion to stay (judicial) proceedings and compel arbitration is without substance. See G. L. c. 251, Section 2(a). It is apparent from the detailed findings made by the motion judge that the point was not raised when the motion was argued and that all the objections to the arbitration clauses raised at that hearing were on wholly different

Page 870

grounds. When the plaintiffs eventually attempted to raise that issue in March, 1977, on their motion to vacate the order of reference to arbitration, it was not timely, as four months had elapsed since the arbitrators had rendered their decision. See G. L. c. 251, Section 12(b), as amended by St. 1972, c. 200, Section 1. See also Trustees of Boston & Me. Corp. v. Massachusetts Bay Transp. Authy., 363 Mass. 386 , 394-395 (1973). 2. The plaintiffs' remaining contention is that the nature of the alleged misconduct is subject to certain Federal statutes and, thus, any provision to submit claims arising under the margin agreements to binding arbitration is void, citing Wilko v. Swan, 346 U.S. 427, 434-438 (1953). Aside from the fact, apparent on the record, that this contention was not properly raised in the Superior Court (see G. L. c. 251, Sections 2, 12[a][5]), it has no application to the circumstances of this case. See Kavit v. A.L. Stamm & Co., 491 F.2d 1176, 1178 (2d Cir. 1974). The plaintiffs' underlying cause of action here is a simple claim for breach of contract, a claim which is governed entirely by State law; moreover, there is nothing in the complaint to suggest that that claim is created by or relies on Federal law.

Judgment affirmed with double costs.