Porta v. E. 51st St. Dev. Co. (In re E. 51st St. Crane Collapse Litig.)

Full title: In re East 51st Street Crane Collapse Litigation. John Della Porta, et…

Court: Supreme Court, Appellate Division, First Department, New York.

Date published: Nov 15, 2012

100 A.D.3d 503 (N.Y. App. Div. 2012)

954 N.Y.S.2d 64

2012 N.Y. Slip Op. 7769

Opinion

2012-11-15

In re East 51st Street Crane Collapse Litigation. John Della Porta, et al., Plaintiffs, v. East 51st Street Development Company, LLC, Defendant–Respondent, Reliance Construction Group, et al., Defendants–Appellants, Joy Contractors, Inc., et al., Defendants. [And A Third–Party Action]

Gallo Vitucci & Klar LLP, New York (Kimberly A. Ricciardi of counsel), for Reliance Construction Ltd., doing business as RCG Group, sued herein as Reliance Construction Group and RCG Group, Inc., appellant. O'Melveny & Myers LLP, New York (Thomas G. Carruthers of counsel), for respondent.

FRIEDMAN

Gallo Vitucci & Klar LLP, New York (Kimberly A. Ricciardi of counsel), for Reliance Construction Ltd., doing business as RCG Group, sued herein as Reliance Construction Group and RCG Group, Inc., appellant. O'Melveny & Myers LLP, New York (Thomas G. Carruthers of counsel), for respondent.
FRIEDMAN, J.P., CATTERSON, RENWICK, DeGRASSE, ROMÁN, JJ.

Order, Supreme Court, New York County (Carol Edmead, J.), entered June 13, 2011, which, to the extent appealed from, denied defendant RCG's motion to renew with respect to a prior order determining that the indemnification clause of its 2008 construction management agreement with defendant/third-party plaintiff East 51st Street Development Company, LLC was triggered, thereby obligating RCG to indemnify East 51st Street for any losses arising out of the work of RCG or its contractors, unanimously affirmed, without costs.

The motion court properly found that RCG failed to demonstrate a reasonable justification for the failure to present the “new evidence” in opposition to the initial motion (CPLR 2221[e]; see American Audio Serv. Bur. Inc. v. AT & T Corp., 33 A.D.3d 473, 476, 823 N.Y.S.2d 25 [1st Dept.2006] ). Further, the motion court correctly concluded that the evidence would not have changed the prior determination, since the parties' 2008 construction management agreement contained a broad merger clause, and thus, extrinsic evidence, such as the oral agreements alleged by RCG, should not be considered to alter, vary or contradict the written agreement ( Jarecki v. Shung Moo Louie, 95 N.Y.2d 665, 669, 722 N.Y.S.2d 784, 745 N.E.2d 1006 [2001];see also Torres v. D'Alesso, 80 A.D.3d 46, 51, 910 N.Y.S.2d 1 [1st Dept.2010] ).