Corinno Civetta Const. Corp. v. City of New York

• Decision Date: 17 January 1985
• Citation: 483 N.Y.S.2d 1017,107 A.D.2d 610
• Parties: CORINNO CIVETTA CONSTRUCTION CORP., Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1017

483 N.Y.S.2d 1017

107 A.D.2d 610

CORINNO CIVETTA CONSTRUCTION CORP., Plaintiff-Respondent, v. The CITY OF NEW YORK, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 17, 1985.

L.M.A. Gulitz, New York City, for plaintiff-respondent.

J.P. Griffin, New York City, for defendant-appellant.

Before MURPHY, P.J., and KUPFERMAN, SULLIVAN, ROSS and KASSAL, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County, entered December 19, 1983, denying defendant City's motion for partial summary judgment dismissing plaintiff's third cause of action, reversed, on the law with costs and disbursements, and the motion granted.

The issue presented on this appeal is whether plaintiff's allegations of damages sustained as a result of construction delays caused by the city set forth a sustainable cause of action in light of the ruling by the Court of Appeals in Kalisch-Jarcho v. City of N.Y., 58 N.Y.2d 377, 461 N.Y.S.2d 746, 448 N.E.2d 413. We hold that they do not.

In September, 1979, plaintiff Corinno Civetta Construction Corp. entered into a contract with the City of New York for the reconstruction and installation of a sewer under the west side of Central Park in the area of West 61st Street. The contract price was $207,061. Construction was to be completed within 100 consecutive calendar days after commencement. Because of various factors the work was not completed until December, 1980, over a year after commencement.

Plaintiff commenced this action to recover, inter alia, damages in the amount of $162,343 allegedly resulting from actions by the City which delayed the project. Plaintiff alleges that the City interfered with plaintiff's work, failed to perform its own work in a punctual manner, failed to provide accurate working plans, and failed to coordinate the project in such a manner that the plaintiff was forced to work outside of the normal sequence of construction.

The City contends that the contract prohibits plaintiff from asserting any claim for damages incurred as a result of alleged delays. Article 13 of the contract provides:

"The Contractor agrees to make no claim for damages for delay in the performance of this contract occasioned by any act or omission to act of the City or any of its representatives, and agrees that any such claim shall be fully compensated for by an extension of time to complete performance of the work as provided herein."

An identical "no-damage-for-delay" clause, which is commonly included in City construction contracts, was...