Appellate Division of the Supreme Court of New York, 2012

LoDuca Associates, Inc. v. PMS Construction Management Corp.

Appellate Division of the Supreme Court of New York · Decided January 12, 2012

91 A.D.3d 485; 936 N.Y.2d 192

Cases that cite this one

20 later published cases cite this decision.

WEYDMAN ELECTRIC, INC. v. JOINT SCHOOLS CONSTRUCTION BOARD (Appellate Division of the Supreme Court of New York 2016)
Weydman Electric, Inc. v. Joint Schools Construction Board (Appellate Division of the Supreme Court of New York 2016)
Weydman Electric, Inc. v. Joint Schools Construction Board (Appellate Division of the Supreme Court of New York 2016)
Gamma USA, Inc. v. Pavarini McGovern, LLC (Appellate Division of the Supreme Court of New York 2025)
Tutor Perini Corp. v. State Univ. Constr. Fund (New York Supreme Court, Albany County 2025)
Matter of Five Star Elec. Corp. v. Metropolitan Tr. Auth. (Appellate Division of the Supreme Court of New York 2022)
Henick-Lane, LLC v. Stellar Mgt. Group, Inc. (Appellate Division of the Supreme Court of New York 2025)
Henick-Lane, Inc. v. 616 First Ave. LLC (Appellate Division of the Supreme Court of New York 2023)
Henick-Lane, Inc. v. 616 First Ave. LLC (Appellate Division of the Supreme Court of New York 2023)
Pizzarotti, LLC v. X-Treme Concrete Inc. (Appellate Division of the Supreme Court of New York 2022)
Pizzarotti, LLC v. X-Treme Concrete Inc. (Appellate Division of the Supreme Court of New York 2022)
Dinallo Constr. Corp. v. Phoenix RMA Constr. Servs., LLC (Appellate Division of the Supreme Court of New York 2021)
Dinallo Constr. Corp. v. Phoenix RMA Constr. Servs., LLC (Appellate Division of the Supreme Court of New York 2021)
Federated Fire Protection Sys. Corp. v. 56 Leonard St., LLC (Appellate Division of the Supreme Court of New York 2020)
Federated Fire Protection Sys. Corp. v. 56 Leonard St., LLC (Appellate Division of the Supreme Court of New York 2020)
New WTC Retail Owner LLC v. Pachanga, Inc. (Appellate Division of the Supreme Court of New York 2018)
Advanced Automatic Sprinkler Co., Inc. v. Seaboard Sur. Co. (Appellate Division of the Supreme Court of New York 2016)
Tougher Industries, Inc. v. Dormitory Authority (Appellate Division of the Supreme Court of New York 2015)
Bovis Lend Lease (LMB), Inc. v. Lower Manhattan Development Corp. (Appellate Division of the Supreme Court of New York 2013)
Bovis Lend Lease (LMB), Inc. v. Lower Manhattan Development Corp. (Appellate Division of the Supreme Court of New York 2013)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

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 *486cause of the delays — primarily design defects based on faulty architectural drawings — was “precisely within the contemplation of the exculpatory clauses” (Gottlieb Contr. v City of New York, 86 AD2d 588, 589 [1982], affd 58 NY2d 1051 [1983]). Moreover, even if defendant knew or should have known of the alleged defects by reason of information it had prior to the contract, such facts constitute merely “inept administration or poor planning,” which does not negate application of the “no damages for delay” provisions (see Commercial Elec. Contrs., Inc. v Pavarini Constr. Co., Inc., 50 AD3d 316, 317-318 [2008]; T.J.D. Constr. Co. v City of New York, 295 AD2d 180 [2002]).

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.