Mario Mechanical, Inc. v. Dormitory Authority

62 A.D.3d 965, 879 N.Y.S.2d 583

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 26, 2009
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated February 19, 2008, as granted the defendant’s motion for summary judgment dismissing the third cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff contractor’s third cause of action alleged that the defendant breached the parties’ contract by failing to timely terminate another contractor and by failing to properly coordinate the construction project, resulting in contract delays. On its motion for summary judgment, the defendant met its prima facie burden of establishing that the damages sought by the plaintiff are barred by the no-damage-for-delay exculpatory clause of the parties’ contract (see Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297 [1986]). In opposition, the plaintiff failed to raise a triable issue of fact as to the applicability of any of the exceptions to the contractual bar (id.; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Accordingly, the Supreme Court properly granted the defendant’s motion. Mastro, J.P., Skelos, Dickerson and Lott, JJ., concur.