| Matter of Hendrick Hudson Cent. School Dist. v Falinski |
| 2010 NY Slip Op 01965 [71 AD3d 769] |
| March 9, 2010 |
| Appellate Division, Second Department |
| In the Matter of Hendrick Hudson Central School District,Appellant, v Joanne Falinski, Respondent. Howard Edelman,Nonparty. |
—[*1] Robert Saperstein, Hauppauge, N.Y., for respondent.
In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration, inwhich the respondent cross-petitioned to compel arbitration, the petitioner appeals from an orderof the Supreme Court, Westchester County (Lefkowitz, J.), entered December 8, 2008, whichdenied the petition and, in effect, granted the cross petition and directed the parties to proceed toarbitration.
Ordered that the order is affirmed, with costs.
The Supreme Court properly upheld the arbitration clause contained in a certain settlementagreement between the parties. Although the instant dispute arose from a separately executedindemnification agreement that contained no arbitration clause, the Supreme Court properly readthe two agreements together (see Nau v Vulcan Rail & Constr. Co., 286 NY 188 [1941];Hoffinger Indus., Inc. v Alabama Ave.Realty, Inc., 68 AD3d 818 [2009]; Sharper Props. Enters., Inc. v Hubbard Sand & Gravel, Inc., 12 AD3d494, 495 [2004]; White Rose Food v Saleh, 292 AD2d 377, 378 [2002], affd99 NY2d 589 [2003]; BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 852[1985]).
Further, the petitioner is estopped from avoiding enforcement of the indemnificationagreement, inasmuch as it was aware of the existence of that agreement as part of the settlementagreement, the parties conducted themselves in reliance on the indemnification agreement, andthe respondent would be prejudiced if the petitioner avoided enforcement of the indemnificationagreement since she accepted the terms of the settlement agreement and performed thereunder(see First Union Natl. Bank vTecklenburg, 2 AD3d 575, 577 [2003]). In addition, the respondent was entitled to relyupon the letter of the petitioner's former Superintendent of Schools advising her that thepetitioner acted on June 23, 1999 and "ratified and confirmed all actions taken and signaturesexecuted with regard to the settlement agreement, [which] included execution of theindemnification agreement" (emphasis added).
Moreover, the indemnification agreement is not unenforceable pursuant to Retirement andSocial Security Law § 113 (a) and § 470 since it exists separately from the NewYork State [*2]Teachers' Retirement System (see Ballentine vKoch, 89 NY2d 51, 59 [1996]; Matter of City of Plattsburgh [Plattsburgh Police OfficersUnion AFSCME Local 82], 250 AD2d 327 [1998]).
The petitioner's remaining contention is without merit. Skelos, J.P., Florio, Hall and Austin,JJ., concur.