Superb General Contracting Co. v. City of New York

70 A.D.3d 517, 893 N.Y.S.2d 866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 18, 2010
• Status: Published

Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 4, 2009, which, in an action by a contractor against the City to recover delay damages incurred in the performance of a subcontract involving the rehabilitation of City-owned housing, inter alia, granted the City’s motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff, a subcontractor hired by the construction manager to perform the rehabilitation, was not in privity of contract with the City as property owner (see Kelly Masonry Corp. v Presbyterian Hosp. in City of N.Y., 160 AD2d 192, 193 [1990]), and therefore cannot recover delay damages against the City as owner where the incorporated prime contract specifically provided that the construction manager was an independent contractor and not an agent or representative of the City (cf. id.). In any event, assuming privity, delay damages are expressly excluded by section 3.6 (f) of the subcontract, which provides instead that full compensation for delay was to be in the form of an extension of time to complete the work, which it is undisputed plaintiff received (see Lasker-Goldman Corp. v City of New York, 221 AD2d 153, 154 [1995], lv dismissed 87 NY2d 1055 [1996]). We have considered plaintiffs other arguments and find them unavailing. Concur—Andrias, J.P., Catterson, Renwick, De-Grasse and Manzanet-Daniels, JJ. [Prior Case History: 22 Mise 3d 1122(A), 2009 NY Slip Op 50247(U).]