TANNOR INC v. ENTERPRISES INC (2000)

Order, Supreme Court, New York County (Charles Ramos, J.), entered June 22, 1999, which, to the extent appealed from as limited by the brief, granted the motion of defendant A.F.C. Enterprises, Inc. for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Plaintiff S.N. Tannor, Inc., a subcontractor on a public works construction project for which defendant A.F.C. Enterprises was the general contractor, sues to recover damages for extra work and delays allegedly occasioned by the conduct of A.F.C.   However, the subcontract between S.N. Tannor and A.F.C. contained “no-damage-for-delay” provisions and A.F.C. is entitled to the protection of those provisions since its delays were not (1) the product of willful, malicious, or grossly negligent conduct;  (2) uncontemplated;  (3) so unreasonable as to constitute an intentional abandonment of the contract;  and (4) the result of A.F.C.'s breach of a fundamental obligation of the contract (see, Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 309, 502 N.Y.S.2d 681, 493 N.E.2d 905).   As the motion court found, the actions by A.F.C. alleged to have caused the complained of delays and necessitated extra work amounted to no more than inept administration and, as such, fall within the subcontract's exculpatory provisions (see, Martin Mechanical Corp. v. P.J. Carlin Constr. Co., 132 A.D.2d 688, 518 N.Y.S.2d 166;  Buckley & Co., Inc. v. City of New York, 121 A.D.2d 933, 505 N.Y.S.2d 140).

We have reviewed plaintiff's remaining arguments and find them unavailing.

MEMORANDUM DECISION.