| Matter of National Union Fire Ins. Co. of Pittsburgh, Pa. v St. BarnabasCommunity Enters., Inc. |
| 2008 NY Slip Op 01071 [48 AD3d 248] |
| February 7, 2008 |
| Appellate Division, First Department |
| In the Matter of National Union Fire Insurance Company ofPittsburgh, Pa., on Behalf of Itself and the Related Insurers that Provided Coverage,Respondent, v St. Barnabas Community Enterprises, Inc., et al.,Appellants. |
—[*1] Zeichner Ellman & Krause LLP, New York City (Michael S. Davis and Kenneth C. Rudd ofcounsel), for respondent.
Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 27,2007, which granted the petition compelling respondent St. Barnabas to arbitrate, and denied thelatter's cross motion to dismiss, unanimously modified, on the law, the arbitration of claimsarising out of the policy for the period 2000 through 2001 stayed, and otherwise affirmed,without costs.
At issue is the arbitrability of a dispute between petitioner and its insured concerningretrospective premiums and credits allegedly due on workers' compensation policies in effect forthe coverage periods of November 7, 1995 through November 7, 1998 and November 7, 2000through November 7, 2001.
As a threshold matter, personal jurisdiction was properly obtained over St. Barnabas viaservice of the petition on counsel, which was made in the time and manner specified in the showcause order (CPLR 403 [d]). Additionally, venue was properly laid in New York County, asspecified in the agreements (CPLR 7502 [a] [i]).
It is undisputed that the insurance policies and agreements for the period 1995 through 1998contained clauses providing for resolution of disputes via arbitration. The disputes arising underthe agreement for the policy period of November 7, 2000 through November 7, 2001 are notarbitrable. It is well settled that a party cannot be forced to submit to arbitration in the absence ofan express agreement to do so (Matter of Waldron [Goddess], 61 NY2d 181, 183 [1984];Gulf Underwriters Ins. Co. v VerizonCommunications, Inc., 32 AD3d 709 [2006]). The 2000-2001 policy did not contain anarbitration clause. To the contrary, it anticipated and provided for litigation. The absence of anarbitration provision, together with the 2000-2001 policy's general merger clause, whichprovided that "only agreements relating to this insurance are stated in this policy," mandateddenial of the petition as to claims arising thereunder (cf. Matter of Primex Intl. Corp. vWal-Mart Stores, 89 NY2d 594 [1997]).
St. Barnabas argues that the policies were procured through a fraudulent inducement schemeinvolving its insurance broker, and this fraud permeated the agreements. Inasmuch as St. [*2]Barnabas makes no specific allegations of being fraudulentlyinduced into agreeing to arbitration, its claim of fraudulent inducement with regard to the 1995through 1998 policy periods must be determined by the arbitrators (see Buckeye CheckCashing, Inc. v Cardegna, 546 US 440 [2006]; Prima Paint Corp. v Flood & ConklinMfg. Co., 388 US 395, 403-404 [1967]; Matter of Weinrott [Carp], 32 NY2d 190,199-200 [1973]). Accordingly, the disputes arising thereunder were properly referred toarbitration.
We have considered the remaining arguments raised by St. Barnabas and find themunavailing. Concur—Andrias, J.P., Nardelli, Williams, McGuire and Acosta, JJ.