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

• Decision Date: 21 October 1986
• Docket Number: NAB-TERN
• Citation: 123 A.D.2d 571,507 N.Y.S.2d 146
• 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, etc., Third-Party Defendant.
• Court: New York Supreme Court — Appellate Division

Page 146

507 N.Y.S.2d 146

123 A.D.2d 571

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, etc., Third-Party Defendant.

Supreme Court, Appellate Division,

First Department.

Oct. 21, 1986.

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

J. Grubin, New York City, for defendant-appellant.

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

MEMORANDUM DECISION.

Upon remittitur from the Court of Appeals, Order, Supreme Court, New York County (Allen M. Myers, J.) 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, modified, on the law, the facts, and in the exercise of discretion, without costs and without disbursements, the cross motion to amend the complaint is denied, without prejudice to renewal at Special Term upon the completion of discovery.

The Court of Appeals reversed (67 N.Y.2d 297, 502 N.Y.S.2d 681, 493 N.E.2d 905) his Court's order (111 A.D.2d 56, 489 N.Y.S.2d 181) granting the motion of the defendant City of New York for partial summary judgment dismissing the fourth cause of action in the complaint seeking damages for delay, which the City allegedly caused plaintiff-contractor in breach of a contract for the renovation of Yankee Stadium. Speaking for the Court, Judge Simons indicated that nothing in Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377, 461 N.Y.S.2d 746, 448 N.E.2d 413 (1983) was meant to abolish the existing principle that damages resulting from uncontemplated delays caused by the contractee are actionable, despite the existence of a broad exculpatory "no damages for delay" clause. 67 N.Y.2d at p. 305, 502 N.Y.S.2d 681, 493 N.E.2d 905. The Court clarified that Kalisch stands for the proposition that such a clause will, however, foreclose recovery for delays or their causes which were contemplated at the time the parties entered into the contract, unless the contractee engaged in conduct which "smacks of intentional wrongdoing", id. at 305, 502 N.Y.S.2d 681, 493 N.E.2d 905, quoting Kalisch-Jarcho, Inc. v. City of New York, supra, 58 N.Y.2d at 385, 461 N.Y.S.2d 746, 448 N.E.2d 413. The Court essentially deemed the fourth cause of action in plaintiff's complaint sufficient because the moving papers lacked proof that the delays in question were anticipated. The Court remitted for the exercise of our discretion on the cross motion to amend the complaint to plead the Kalisch factors.

Plaintiff unequivocally claimed that the type of delay alleged in the complaint was uncontemplated, and only sought leave to amend the complaint as an alternative stratagem to avoid preclusion of damages under Kalisch. In support of the amendment plaintiff submitted the affidavit of its Vice President, Seymour Freed, a licensed professional engineer, and its answers to interrogatories delineating the delays allegedly caused by the City. Freed "categorically state[d]" that the delays in question were unanticipated, and averred in any event that the poorly designed...