SIMS INC v. Metropolitan Transportation Authority, et al., Defendants. (1999)

Judgment, Supreme Court, New York County (Martin Evans, J.H.O.), entered September 2, 1998, after a nonjury trial, which, to the extent appealed from, limited plaintiff's recovery of delay damages to the principal sum of $4095, unanimously affirmed, without costs.

We agree with the trial court that “total cost” method of calculating construction delay damages (see, Fehlhaber Corp. & Horn Constr. Co., Inc. v. State of New York, 69 A.D.2d 362, 368, 419 N.Y.S.2d 773) was inapplicable under the particular circumstances of this case, and that plaintiff did not otherwise sufficiently prove delay-caused labor costs by non-speculative evidence (see, Mid-State Precast Sys. v. Corbetta Constr. Co., Inc., 202 A.D.2d 702, 704, 608 N.Y.S.2d 546, appeal dismissed 84 N.Y.2d 923, 621 N.Y.S.2d 520, 645 N.E.2d 1220, lv. dismissed 86 N.Y.2d 855, 634 N.Y.S.2d 440, 658 N.E.2d 218).   We have considered plaintiff's remaining arguments and find them unavailing.

MEMORANDUM DECISION.