LoDuca Associates, Inc. v. PMS Construction Management Corp.
Opinion of the Court
Plaintiffs seeking to invoke one of the exceptions to the enforceability of a “no damages for delay” clause face a “heavy burden” (see Dart Mech. Corp. v City of New York, 68 AD3d 664, 664 [2009]). Possible causes for delay specifically mentioned in the contract are, by definition, “contemplated” (see Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297, 309-310 [1986]; Universal/MMEC, Ltd. v Dormitory Auth. of State of N.Y., 50 AD3d 352, 353 [2008]).
The causes of action were properly dismissed, as the alleged
It is true that, as argued by plaintiff, the length of the delay is relevant to the issue of whether an exception to the general rule enforcing “no damages for delay” clauses applies (see Bovis Lend Lease LMB v GCT Venture, 6 AD3d 228, 229 [2004]). However, the length of the delay does not transform a delay caused by an event specifically contemplated by the “no damages for delay” clause into something uncontemplated (see Dart Mech. Corp., 68 AD3d at 664 [32-month delay not actionable where several contract provisions indicated that delay was contemplated]).
The motion for leave to renew was properly denied since the new evidence offered by plaintiff demonstrated merely the alleged severity and scope of the alleged design defects and ensuing delays, but not that they were uncontemplated.
We have reviewed plaintiff’s remaining contentions and find them unavailing. Concur — Mazzarelli, J.E, Andrias, Saxe and Freedman, JJ.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.