IN RE: FIVE STAR ELECTRIC CORP. (2022)

Judgment (denominated an order), Supreme Court, New York County (Eileen A. Rakower, J.), entered September 1, 2021, which denied the petition seeking to annul a determination of respondent Contract Dispute Resolution Board (CDRB), dated October 8, 2020, denying petitioner's claim under a contract with respondent New York City Transit Authority, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

CDRB had a rational basis for finding that petitioner failed to present evidence warranting the application of any exception to the general rule that no-damages-for-delay clauses are enforceable (see generally 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 [1986]).  Delays caused by the Transit Authority's diversion of certain services in the aftermath of Superstorm Sandy were not uncontemplated by the parties, since such circumstances were “specifically mentioned in the [C]ontract” as “[p]ossible causes for delay” (LoDuca Assoc., Inc. v. PMS Constr. Mgt. Corp., 91 A.D.3d 485, 485, 936 N.Y.S.2d 192 [1st Dept. 2012]).  CDRB also had a rational basis for finding that petitioner failed to establish a “breach of a fundamental, affirmative obligation the agreement expressly imposes on the contractee” (Corinno, 67 N.Y.2d at 313, 502 N.Y.S.2d 681, 493 N.E.2d 905).  In addition, CDRB had a rational basis for rejecting petitioner's argument that the Transit Authority breached the implied covenant of good faith and fair dealing in the course of contract performance, which does not impose “obligation[s] ․ that would be inconsistent with other terms of the contractual relationship” (Dalton v. Educ. Testing Serv., 87 N.Y.2d 384, 389, 639 N.Y.S.2d 977, 663 N.E.2d 289 [1995]).  We have considered and rejected all of petitioner's remaining arguments, including its arguments based on alleged misrepresentations (see Glenn Partition v.Trustees of Columbia Univ. in City of N.Y., 169 A.D.2d 488, 564 N.Y.S.2d 361 [1st Dept. 1991]) and design revisions (see e.g. LoDuca, 91 A.D.3d at 485–486, 936 N.Y.S.2d 192).