Inter Metal Fabricator Inc. v. HRH Construction LLC

41 A.D.3d 210, 838 N.Y.S.2d 515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 2007
• Status: Published

Opinion

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered January 13, 2006, which, to the extent appealed from, granted defendants’ motion to dismiss the fifth cause of action in the fourth amended complaint, seeking delay damages, unanimously affirmed, without costs.

We affirm the dismissal of the claim for delay damages upon the ground that it is premature. The contract bars claims against the construction manager “on account of the Contract Price for the Project” until the completion of available mechanic’s lien enforcement actions, and two such causes of action are alleged in the fourth amended complaint. Although plaintiff contends that the clause requiring exhaustion of Lien Law remedies is unenforceable, the provision at issue does not offend the prohibition against indefinitely suspending a contractor’s right to enforce its mechanics’ liens (cf. West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 87 NY2d 148 [1995]). Moreover, even if the claim for delay damages was not premature, it would be barred by the “no-damages-for-delay” provision contained in the parties’ contract. Concur—Andrias, J.P., Saxe, Friedman, Nardelli and Malone, JJ.