X.L.O. Concrete Corp. v. John T. Brady and Company

Full title: X.L.O. CONCRETE CORP., Plaintiff, v. JOHN T. BRADY AND COMPANY et al.…

Court: Court of Appeals of the State of New York

Date published: Dec 17, 1985

66 N.Y.2d 970 (N.Y. 1985)

498 N.Y.S.2d 799

489 N.E.2d 768

Opinion

Argued November 18, 1985

Decided December 17, 1985

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, David H. Edwards, Jr., J.

Robert P. Walton, S. Andrew Schaffer and Moira Morrissey for appellant.

Frederick Cohen and Charles Fastenberg for respondents.

Order affirmed, with costs, and question certified answered in the affirmative for so much of the reasons stated in the opinion by Justice Joseph P. Sullivan at the Appellate Division ( 104 A.D.2d 181) as holds that a liquidated damage provision in a construction contract is not vitiated by the owner's own culpability in causing some of the delay, and that in the situation here present the owner is limited to recovery of the stipulated sum.

Concur: Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS and TITONE. Taking no part: Judges KAYE and ALEXANDER.