J.J. Flannery, Inc. v. Kerby Saunders, Inc.

173 A.D.2d 415

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Irma Vidal Santaella, J.), entered September 13, 1990, which, inter alia, denied that branch of defendant Kerby Saunders, Inc.’s CPLR 3212 motion seeking partial summary judgment dismissing the complaint’s fourth and fifth causes of action, unanimously affirmed, without costs.

In this action brought by plaintiff subcontractor, J.J. Flannery, Inc., for breach of a sheet metal subcontract, Kerby, a heating ventilation and air conditioning contractor, argues that plaintiff’s papers in opposition to its partial summary judgment motion failed to raise a triable issue of fact. The subcontract includes a "no damage for delay” clause, and the complaint’s fourth and fifth causes of action seek damages and quantum meruit relief, respectively, as a consequence of defendant Kerby’s alleged delays.

In view of the 25 month delay involved here, we find triable issues of fact exist warranting a trial, including whether the no-delay clause was intended by the parties to immunize defendant from its own alleged delay causing acts, where, as here, the aggregate delay period complained of was 25 months (Corinno Civetta Constr. Corp. v City of New York, 67 NY2d ). Concur—Sullivan, J. P., Milonas, Wallach, Ross and Kassal, JJ.