Summary
affirming denial of plaintiff's motion to amend claim for delay damages based on similar allegations as allegations were within the contemplation of the broad no-damages-for-delay clause in the contract
Summary of this case from Federated Fire Prot. Sys. Corp. v. 56 Leonard St., LLCOpinion
8729N Index 651250/16
03-14-2019
WDF, INC., Plaintiff–Appellant, v. The TRUSTEES OF COLUMBIA UNIVERSITY in the City of New York, et al., Defendants–Respondents.
Pepper Hamilton LLP, New York (Frank T. Cara of counsel), for appellant. Zetlin & DeChiara LLP, New York (Joeann E. Walker of counsel), for The Trustees of Columbia University in the City of New York, respondent. Milber Makris Plousadis & Seiden, LLP, White Plains (Lorin A. Donnelly of counsel), for Lend Lease (US) Construction LMB, Inc., respondent.
Pepper Hamilton LLP, New York (Frank T. Cara of counsel), for appellant.
Zetlin & DeChiara LLP, New York (Joeann E. Walker of counsel), for The Trustees of Columbia University in the City of New York, respondent.
Milber Makris Plousadis & Seiden, LLP, White Plains (Lorin A. Donnelly of counsel), for Lend Lease (US) Construction LMB, Inc., respondent.
Richter, J.P., Gische, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered on or about May 9, 2018, which denied plaintiff's motion to amend the complaint, unanimously affirmed, without costs.
Plaintiff, an HVAC subcontractor hired to perform work on a construction project on Columbia University's Manhattanville campus, filed a complaint alleging, inter alia, that defendants delayed the project causing them damages. To defeat an enforceable no delay damages clause in the subcontract, plaintiff made conclusory allegations to try to apply one of the exceptions set forth in Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 309, 502 N.Y.S.2d 681, 493 N.E.2d 905 [1986], and this Court affirmed dismissal of the claims relating to delay damages on that basis ( 156 A.D.3d 530, 65 N.Y.S.3d 448 [1st Dept. 2017] ).
Denial of plaintiff's motion was properly denied since the allegations set forth in the proposed amended complaint are "palpably insufficient or clearly devoid of merit" ( MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 500, 901 N.Y.S.2d 522 [1st Dept. 2010] ). Plaintiff merely alleges additional details regarding the delays due to failure to erect the steel work for the building in a timely fashion, not enclosing the building's floors in the winter months, interfering with plaintiff's plan to complete its work on a floor-by-floor basis, having to deal with extreme revisions to change orders and redesigned mechanical work, and failing to provide a complete project schedule. Plaintiff's allegations amount to "inept administration or poor planning" and do not constitute bad faith or willful, malicious, or grossly negligent conduct ( Advanced Automatic Sprinkler Co., Inc. v. Seaboard Sur. Co., 139 A.D.3d 424, 425, 29 N.Y.S.3d 166 [1st Dept. 2016] [internal quotation marks omitted] ). Furthermore, these alleged delays were within the contemplation of the broad no-damages-for-delay clause of the subcontract (see Blau Mech. Corp. v. City of New York, 158 A.D.2d 373, 374, 551 N.Y.S.2d 228 [1st Dept. 1990] ).
In view of the foregoing, we need not consider whether defendants were prejudiced by plaintiff's delay in seeking leave to amend.