LoDuca Assoc., Inc. v PMS Constr. Mgt. Corp.

LoDuca Assoc., Inc. v PMS Constr. Mgt. Corp. 2012 NY Slip Op 00121 Decided on January 12, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 12, 2012
Mazzarelli, J.P., Andrias, Saxe, Freedman, JJ.
6534 602673/09 6534A

[*1]LoDuca Associates, Inc., Plaintiff-Appellant,

v

PMS Construction Management Corp., Defendant-Respondent, City of New York, et al., Defendants.




Tunstead & Schechter, Jericho (Michael D. Ganz of counsel),
for appellant.
Hollander & Strauss, LLP, Great Neck (Michael R. Strauss of
counsel), for respondent.

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 AD3d 664 [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 NY2d 297, 309-10 [1986]); Universal/MMEC, Ltd. v Dormitory Auth. of State of N.Y., 50 AD3d 352, 353 [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 AD2d 588, 589 [1982], affd 58 NY2d 1051 [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 AD3d 316, 317-18 [2008]; T.J.D. Constr. Co. v City of New York, 295 AD2d 180 [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 AD3d 228, 229 [2004]). However, the length of the delay does not transform a delay caused by an event specifically contemplated by the "no damages [*2]
for delay" clause into something uncontemplated (see Dart Mech. Corp., 68 AD3d at 664 [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.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 12, 2012

CLERK