Summary
This Appellate Division, First Department decision affirms a Supreme Court order granting summary judgment in favor of defendants in a construction dispute. The court held that a no-damages-for-delay clause in the parties' subcontract barred plaintiff's claims for extra work stemming from eight change order requests. The court further determined that none of the three Corinno Civetta exceptions applied, as the delays were not willful or malicious, were expressly contemplated by the contract, and did not breach a fundamental obligation. Finally, the court rejected the application of the prevention doctrine to invalidate the exculpatory clause.
Topics
Practice areas
Questions Presented
- Whether the no‑damages‑for‑delay clause in the subcontract applies to plaintiff's change‑order requests.
- Whether any of the Corinno Civetta exceptions to the clause apply.
- Whether the prevention doctrine bars enforcement of the clause.
Holdings
- The clause applies; plaintiff’s change‑order requests are subject to the no‑damages‑for‑delay provision.
- None of the three Corinno Civetta exceptions apply.
- The prevention doctrine does not bar enforcement because the clause is an exculpatory provision, not a condition precedent.
Key quotations
“[i]f [plaintiff] is obstructed, hindered or delayed in the commencement, prosecution or completion of the Work . . . by [defendants], . . . or by changes in the Work , . . . then [plaintiff] shall be entitled, as its sole and exclusive remedy, to an extension of time for performance of the Work . . .”
Factual background
The parties entered a construction subcontract that contained a no‑damages‑for‑delay clause. Plaintiff sought change orders for extra work that it alleged were caused by defendants' obstructions, delays, or changes in the work. Defendants moved for summary judgment asserting that the clause barred any delay damages.
Procedural history
The Supreme Court, New York County entered an order on September 5 2024 granting summary judgment to the defendants on certain extra‑work claims and later entered an amended judgment on March 3 2025 affirming the award to the plaintiff. The appellant appealed those orders to the Appellate Division, First Department.