Commercial Division Blog

Posted: May 11, 2016 / Categories Commercial, Contracts

Plaintiff Fails to Meet Heavy Burden of Proving Exception to "No Damages For Delay" Clause

On May 3, 2016, the First Department issued a decision in Advanced Automatic Sprinkler Co., Inc. v. Seaboard Surety Co., 2016 NY Slip Op. 03444, discussing the exceptions to a "no damages for delay" clause in a construction contract.

In Advanced Automatic Sprinkler Co., the plaintiff brought claims against the defendant to recover for alleged damages resulting in delays in a construction project. However, the First Department held that the "plaintiff failed to meet its heavy burden of establishing an exception to the rule that" a "no damages for delay" clause "will be enforced," explaining:

[T]he delays that plaintiff seeks to impute to the prime contractor constitute, at most, "inept administration" or "poor planning," and do not, as plaintiff contends, evince bad faith on the prime contractor's part. Nor, contrary to plaintiff's contention, were the delays uncontemplated, and, in any event, under the contract, plaintiff assumed the risk for all delay damages, "whether contemplated or uncontemplated."

(Internal quotations and citations omitted) (emphasis added).