no-damage-for-delay clause in New York

2022Corp. v City of New York , 67 NY2d 297, 305 ; see Arnell Constr.

2000Our review of the record reveals that regardless of plaintiff’s efforts to characterize its claim as one for breach of contract, it is quintessentially a claim for delay damages, precisely the type of claim which the no-damage-for-delay clause was intended to bar (see, id., at 313-314 ).

1986Auth., 22 AD2d 990 ) and the cause or reason for the delay must be within the contemplation of the parties at the time the contract was executed before it will bar a claim for damages (Corinno Civetta Constr.

1983A no-damage-for-delay clause must be strictly construed against the party seeking exemption from liability because of its own fault (Ippolito-Lutz Inc. v Cohoes Housing Auth., 22 AD2d 990 ; see Johnson v City of New York, 191 App Div 205 , affd 231 NY 564 ).

2026“Such clauses [limiting damages] have been found valid and preclude recovery of damages resulting from a broad range of reasonable and unreasonable conduct, where, as here, the conduct was specifically contemplated by the parties when they entered into the agreement.” (N. Star Contracting Corp, 203 AD2d at 214–15.) While the record is silent as to why these sophisticated parties limited the refund of the Exclusivity Fee to these four instances, based on the four instances for refund, the court cannot find that the parties did not contemplate which conduct should trigger a refund.

2019Corp. , 123 AD2d 374, 376 ).

1994Although such a no-damage-for-delay clause will not preclude recovery for damages resulting from the City’s intentional wrongdoing, gross negligence or willful misconduct (supra, at 305, 309), the record reveals that the plaintiff failed to meet its heavy burden of proving that the delays were wholly unanticipated and were solely due to gross negligence or misconduct on the part of the municipality, particularly since the provisions of the parties’ contract specifically contemplated the type of problems encountered and provided detailed provisions to avert such problems and to assign the risk

1994Nor was the parties’ conduct consistent with a rescission of the contract by the plaintiff based upon the City’s alleged fundamental breach thereof (see, Babylon Assocs. v County of Suffolk, 101 AD2d 207, 215 ), or an abandonment of the contract by the City (see, Staebell v Bennie, 83 AD2d 765, 765-766 ).

1994Nor was the parties’ conduct consistent with a rescission of the contract by the plaintiff based upon the City’s alleged fundamental breach thereof (see, Babylon Assocs. v County of Suffolk, 101 AD2d 207, 215 ), or an abandonment of the contract by the City (see, Staebell v Bennie, 83 AD2d 765, 765-766 ).

1986The first portion of the "Uncontrollable Circumstance” paragraph excuses delays in performance "by reason of flood, riot, strike, war or other cause beyond the control of [the defendant].” Applying the rule of ejusdem generis, the comprehensive words "other cause beyond the control” of the defendant are restricted to some extraordinary cause analogous to the specifically named contingencies and not to problems which must naturally be anticipated as to performance (see, Traylor v Crucible Steel Co., 192 App Div 445 , affd 232 NY 583 ).

1986We placed an important limitation on this exception in our decision in Kalisch-Jarcho when we recognized that a broad no-damage-for-delay clause would be meaningless unless it encompassed within its scope a range of unreasonable as well as reasonable delays because any other application would permit the exception to swallow up the general rule ( 58 NY2d 377, 384 , supra, citing Mack v State of New York, 122 Misc 86, 88 , affd no opn 211 App Div 825 ).

1986Since the facts regarding the cause of the delay are in dispute, the legal significance of the no-damage-for-delay clause will have to await a trial (see, Norman Co. v County of Nassau, 63 Misc 2d 965 ; Matter of Chuckrow Constr.

1986We placed an important limitation on this exception in our decision in Kalisch-Jarcho when we recognized that a broad no-damage-for-delay clause would be meaningless unless it encompassed within its scope a range of unreasonable as well as reasonable delays because any other application would permit the exception to swallow up the general rule ( 58 NY2d 377, 384 , supra, citing Mack v State of New York, 122 Misc 86, 88 , affd no opn 211 App Div 825 ).

1986We placed an important limitation on this exception in our decision in Kalisch-Jarcho when we recognized that a broad no-damage-for-delay clause would be meaningless unless it encompassed within its scope a range of unreasonable as well as reasonable delays because any other application would permit the exception to swallow up the general rule ( 58 NY2d 377, 384 , supra, citing Mack v State of New York, 122 Misc 86, 88 , affd no opn 211 App Div 825 ).

1986The first portion of the "Uncontrollable Circumstance” paragraph excuses delays in performance "by reason of flood, riot, strike, war or other cause beyond the control of [the defendant].” Applying the rule of ejusdem generis, the comprehensive words "other cause beyond the control” of the defendant are restricted to some extraordinary cause analogous to the specifically named contingencies and not to problems which must naturally be anticipated as to performance (see, Traylor v Crucible Steel Co., 192 App Div 445 , affd 232 NY 583 ).

1986Co. [Horowitz Bros.], 30 AD2d 789 ).

1983On the sparse record before us (containing only isolated clauses from the contract documents) it cannot be ascertained whether the type of delay alleged in the complaint was contemplated by the parties and intended to be included as delay “on the part of the owner in doing the work” (see Peckham Road Co. v State of New York, 32 AD2d 139 , affd 28 NY2d 734 ).

1983On the sparse record before us (containing only isolated clauses from the contract documents) it cannot be ascertained whether the type of delay alleged in the complaint was contemplated by the parties and intended to be included as delay “on the part of the owner in doing the work” (see Peckham Road Co. v State of New York, 32 AD2d 139 , affd 28 NY2d 734 ).