Nab-Tern Constructors v. City of New York (Yankee Stadium), NAB-TERN

• Decision Date: 14 May 1985
• Docket Number: NAB-TERN
• Citation: 489 N.Y.S.2d 181,111 A.D.2d 56
• Parties: CONSTRUCTORS, Plaintiff-Respondent, v. The CITY OF NEW YORK (YANKEE STADIUM), Defendant-Appellant. The CITY OF NEW YORK, Third-Party Plaintiff, v. The URS CORPORATION et al., Third-Party Defendants. The CITY OF NEW YORK, Third-Party Plaintiff, v. ARGONAUT INSURANCE COMPANY, as Completing Surety for Gotham Equipment Corp., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 181

489 N.Y.S.2d 181

111 A.D.2d 56

NAB-TERN CONSTRUCTORS, Plaintiff-Respondent, v. The CITY OF NEW YORK (YANKEE STADIUM), Defendant-Appellant.

The CITY OF NEW YORK, Third-Party Plaintiff, v. The URS CORPORATION et al., Third-Party Defendants.

The CITY OF NEW YORK, Third-Party Plaintiff, v. ARGONAUT INSURANCE COMPANY, as Completing Surety for Gotham

Equipment Corp., Third-Party Defendant.

Supreme Court, Appellate Division First Department.

May 14, 1985.

E.S. Cohn, New York City, for plaintiff-respondent.

D. Robbins, New York City, for defendant-appellant.

Before MURPHY, P.J., and CARRO, BLOOM, MILONAS and ROSENBERGER, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, entered July 17, 1984 and resettled by said court on December 20, 1984, denying defendant-City's motion for partial summary judgment dismissing the fourth cause of action and granting plaintiff's cross-motion to amend the complaint, unanimously reversed on the law, the City's motion granted and the cross-motion denied, all without costs.

Plaintiff, a joint venture, brought action against the City to recover damages arising out of the reconstruction of the Yankee Stadium. Plaintiff, a general contractor for the reconstruction job, entered into a contract which provided:

"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" (emphasis added).

By summons and complaint dated in April, 1978, plaintiff commenced this action. The complaint contains five causes of action. The fourth cause, the only one with which we are here concerned, deals with delay damages. Approximately five and three quarter millions is sought. The City moved for partial summary judgment dismissing this cause. Plaintiff cross-moved for leave to serve an amended complaint. Special Term denied the motion and granted the cross motion.

We think this was error. The exculpatory clause is in precisely the same language as that involved in Kalisch-Jarcho v. City of New York, 58 N.Y.2d 377, 461 N.Y.S.2d 746, 448 N.E.2d 413. The Court of Appeals held the provision operable and binding except in cases of intentional wrongdoing. "This can be explicit, as when it is fraudulent, malicious or prompted by the sinister intention of one...