MACK CONSTRUCTION CO INC v. CENTRAL SQUARE CENTRAL SCHOOL DISTRICT (2000)

Plaintiff, the masonry contractor on a construction project for defendant school district, commenced this action to recover damages it allegedly incurred when it was required to complete its performance of the contract under “materially changed conditions” created by defendant and its agents.   Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint.   The damages sought by plaintiff are encompassed within the no-damage-for-delay exculpatory clauses in article 8 of the parties' contract.  “Such clauses have been found valid, and preclude recovery of damages resulting from a broad range of reasonable and unreasonable conduct, where, as here, the conduct was specifically contemplated by the parties when they entered into the agreement” (North Star Contr. Corp. v. City of New York, 203 A.D.2d 214, 214-215, 611 N.Y.S.2d 11, citing Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 305, 502 N.Y.S.2d 681, 493 N.E.2d 905).   Plaintiff may not avoid the contractual bar to such damages on the ground that the delays resulted from defendant's alleged gross negligence or willful misconduct.   The record contains no evidence of willful misconduct or “conduct by [defendant] so grossly negligent as to constitute a predicate for a delay damage claim in the face of the contract's broad exculpatory clause” (Buckley & Co. v. City of New York, 121 A.D.2d 933, 934, 505 N.Y.S.2d 140, appeal dismissed 69 N.Y.2d 742, 512 N.Y.S.2d 1030, 504 N.E.2d 699, lv. dismissed 69 N.Y.2d 742, 512 N.Y.S.2d 1030, 504 N.E.2d 699).

Order unanimously affirmed without costs.

MEMORANDUM: