DINALLO CONSTRUCTION CORPORATION v. PHOENIX RMA CONSTRUCTION SERVICES LLC (2021)

Order (resettled), Supreme Court, New York County (Robert R. Reed, J.), entered on or about June 24, 2020, which, to the extent appealed from, granted plaintiff's and additional counterclaim defendant's (Liberty Mutual) motion to dismiss defendant Phoenix RMA Construction Services, LLC's counterclaims for delay damages and unjust enrichment, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered on or about March 4, 2020, unanimously dismissed, without costs, as superseded by the appeal from the resettled order.

Plaintiff established via its agreement with defendant Phoenix that the delays for which Phoenix seeks damages were contemplated by the parties at the time that they entered into the agreement and that therefore the claim was precluded by the agreement's broad no-damages-for-delay provision (see LoDuca Assoc., Inc. v. PMS Constr. Mgt. Corp., 91 A.D.3d 485, 936 N.Y.S.2d 192 [1st Dept. 2012];  Five Star Elec. Corp. v. Trustees of Columbia Univ., 189 A.D.3d 536, 133 N.Y.S.3d 825 [1st Dept. 2020];  Weydman Elec., Inc. v. Joint Schs. Constr. Bd., 140 A.D.3d 1605, 1607, 33 N.Y.S.3d 609 [4th Dept. 2016], lv dismissed 28 N.Y.3d 1024, 42 N.Y.S.3d 675, 65 N.E.3d 705 [2016]).  Phoenix's claims of bad faith and gross negligence amount to “nothing more than inept administration or poor planning” (WDF Inc. v. Trustees of Columbia Univ. in the City of N.Y., 170 A.D.3d 518, 519, 96 N.Y.S.3d 42 [1st Dept. 2019] [internal quotation marks omitted];  see generally Bovis Lend Lease [LMB], Inc. v. Lower Manhattan Dev. Corp., 108 A.D.3d 135, 147, 966 N.Y.S.2d 51 [1st Dept. 2013]).  Plaintiff's alleged failure to provide adequate heating did not breach a fundamental obligation of the contract (see Federated Fire Protection Sys., Corp. v. Extell W. 57th St., LLC, 186 A.D.3d 1152, 129 N.Y.S.3d 328 [1st Dept. 2020]).

The existence of the parties’ written agreement precludes Phoenix's unjust enrichment counterclaim (see Clark–Fitzpatrick Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987];  Goldstein v. CIBC World Mkts. Corp., 6 A.D.3d 295, 296, 776 N.Y.S.2d 12 [1st Dept. 2004]).