Matter of East 51st St. Crane Collapse Litig.
2012 NY Slip Op 07769 [100 AD3d 503]
November 15, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, December 26, 2012
As corrected through Wednesday, December 26, 2012


In the Matter of East 51st Street Crane Collapse Litigation. John Della Porta et al., Plaintiffs
v
East 51st Street Development Company, LLC, Respondent, and Reliance Construction Group et al., Appellants, et al., Defendants. (And a Third-Party Action.)

[*1] 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.

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 AD3d 473, 476 [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 [*2]alleged by RCG, should not be considered to alter, vary or contradict the written agreement (Jarecki v Shung Moo Louie, 95 NY2d 665, 669 [2001]; see also Torres v D'Alesso, 80 AD3d 46, 51 [1st Dept 2010]). Concur—Friedman, J.P., Catterson, Renwick, DeGrasse and Román, JJ.