LoDUCA ASSOCIATES INC v. City of New York, et al., Defendants. (2012)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered September 15, 2010, which granted defendant PMS Construction Management Corp.'s motion to dismiss the second, third, and fourth causes of action, and order, same court and Justice, entered December 10, 2010, which, to the extent appealable, denied plaintiff's motion for leave to renew, unanimously affirmed, without costs.

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 A.D.3d 664, 891 N.Y.S.2d 76 [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 N.Y.2d 297, 309–10, 502 N.Y.S.2d 681, 493 N.E.2d 905 [1986] ); Universal/MMEC, Ltd. v. Dormitory Auth. of State of N.Y., 50 A.D.3d 352, 353, 856 N.Y.S.2d 560 [2008] ).

The causes of action were properly dismissed, as the alleged cause 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 A.D.2d 588, 589, 446 N.Y.S.2d 311 [1982], affd. 58 N.Y.2d 1051, 462 N.Y.S.2d 642, 449 N.E.2d 422 [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 A.D.3d 316, 317–18, 856 N.Y.S.2d 46 [2008]; T.J.D. Constr. Co. v. City of New York, 295 A.D.2d 180, 743 N.Y.S.2d 111 [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 A.D.3d 228, 229, 775 N.Y.S.2d 259 [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 A.D.3d at 664, 891 N.Y.S.2d 76 [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.