| Matthius v Platinum Estates, Inc. |
| 2010 NY Slip Op 04965 [74 AD3d 908] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Robert H. Matthius, Plaintiff/Third Third-Party Defendant, et al.,Plaintiff, v Platinum Estates, Inc., Defendant/Third-Party Plaintiff/Third Third-PartyPlaintiff/Fourth Third-Party Plaintiff-Respondent, Grymes Hill Estates, Inc., Defendant/SecondThird-Party Plaintiff-Respondent, and John Culotta et al., Defendants/Third-PartyDefendants/Second Third-Party Plaintiffs-Respondents. JAC Contruction Corp., SecondThird-Party Defendant/Fourth Third-Party Defendant-Appellant. |
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In an action to recover damages for personal injuries, etc., the second third-partydefendant/fourth third-party defendant, JAC Construction Corp., appeals from so much of anorder of the Supreme Court, Richmond County (Maltese, J.), dated March 6, 2009, as granted themotion of the defendant/second third-party plaintiff Grymes Hill Estates, Inc., and thedefendants/third-party defendants/second third-party plaintiffs, John Culotta and Robert Ricca,to confirm a referee's report dated October 21, 2008, finding that those parties were entitled toindemnification by it for their costs and attorney's fees in the main action, and granted the crossmotion of the defendant/third-party plaintiff/third-third party plaintiff/fourth third-party plaintiff,Platinum Estates, Inc., to modify the referee's report to add a finding that Platinum Estates, Inc.,also was entitled to indemnification by JAC Construction Corp. for its costs and attorney's feesin the main action.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe respondents appearing separately and filing separate briefs.[*2]
JAC Construction Corp. (hereinafter JAC) entered into awritten agreement (hereinafter the indemnification agreement) with Grymes Hill Estates, Inc.(hereinafter Grymes Hill), of which John Culotta and Robert Ricca are the principals, on January4, 2002. In that agreement, JAC agreed to indemnify Grymes Hill, the general contractor,Platinum Estates, Inc. (hereinafter Platinum), the owner, and their agents and employees for alldamages, losses, and expenses, including attorney's fees, arising out of the performance of JAC'swork, to the extent caused by JAC's negligence. JAC also agreed to obtain liability and worker'scompensation insurance policies, name Grymes Hill as an additional insured, and delivercertificates of insurance, all of which it did.
On January 17, 2002, JAC and Grymes Hill entered into another written agreement(hereinafter the January 17th agreement), setting forth the work to be performed by JAC. Thisagreement contained a merger clause, stating that "[t]his is the entire agreement between theparties hereto, and there are no representations, promises, warranties or understandings of anykind, except as set forth in this contract."
JAC's contention that it was not obligated to indemnify Grymes Hill, Culotta, Ricca, andPlatinum because pursuant to the merger clause in the January 17th agreement, that agreementsuperseded the prior indemnification agreement, is without merit. The purpose of a mergerclause is to require full application of the parol evidence rule in order to bar the introduction ofextrinsic evidence to alter, vary, or contradict the terms of a written agreement (see Jarecki vShung Moo Louie, 95 NY2d 665, 669 [2001]; Matter of Primex Intl. Corp. v Wal-MartStores, 89 NY2d 594, 599 [1997]). Where a valid contract is incomplete, extrinsic evidenceis admissible to complete the writing if it is apparent from an inspection of the writing that all theparticulars of the agreement are not present, and that evidence does not vary or contradict thewriting (see Valente v Allen Shuman & Irwin Richt, D.P.M., P. C., 137 AD2d 678[1988]).
Here, the January 17th agreement was incomplete and ambiguous. It contained a generalprovision requiring JAC to provide insurance, but did not state the amount of insurance coverageor the parties to be named as insureds. Therefore, evidence of the indemnification agreement,which contained specific provisions regarding the amount of insurance to be provided and theparties to be insured, was admissible to resolve these ambiguities. The indemnificationagreement however, did not vary, alter, or contradict any terms in the January 17th agreementand, thus, remained enforceable(see Matter of Primex Intl. Corp. v Wal-Mart Stores, 89NY2d 594 [1997]).
Furthermore, the January 17th agreement set forth the work to be performed by JAC, but didnot specifically address the issue of indemnification. Therefore, Grymes Hill and Platinum couldpresent evidence to prove the existence of the agreement in which JAC agreed to indemnify them(see Elbroji v 22 E. 54th St. Rest.Corp., 67 AD3d 957 [2009]). Since the indemnification agreement and the January 17thagreement dealt with different subject matter, the merger clause did not extinguish theindemnification agreement (see Gordon v Patchogue Surgical Co., 222 AD2d 651[1995]).
By obtaining insurance and naming Grymes Hill as an insured pursuant to theindemnification agreement, JAC demonstrated its intent to be held to that agreement.
The referee's findings are supported by substantial evidence in the record and, therefore, hisreport was properly confirmed (see Matter of Lipsky v Koplen, 282 AD2d 462 [2001];Barr v Barr, 232 AD2d 316 [1996]). Skelos, J.P., Covello, Hall and Sgroi, JJ., concur.