Citation Numbers： 191 A.D.2d 253, 595 N.Y.S.2d 11, 1993 N.Y. App. Div. LEXIS 2212
Filed Date： 3/11/1993
Status： Precedential
Modified Date： 10/31/2024
—Order, Supreme Court, New York County (Alfred Toker, J.), entered November 14, 1991, which granted defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7) to the extent it seeks damages due to delays, unanimously affirmed, with costs.
Pursuant to an agreement between the parties dated on or about January 29, 1990, plaintiff was to supply labor and materials to install furniture, fixtures and equipment at the Hotel Macklowe. Since Article 15 of the agreement provided for no payment or allowances due to delays from any cause, defendants are not liable for damages resulting from delays (see, Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297, 309). While plaintiff contends that the parties orally modified the contract with respect to delay damages by agreement to pay a portion of two invoices, plaintiff also admits that no such payment for delay damages was actually made. Further, Article 24 contained a non-waiver clause, entitling defendants to avail themselves of the terms and conditions of the contract.
As the claimed modification of the contract is unsupported, the court properly dismissed that portion of the complaint seeking damages due to delays. Concur — Sullivan, J. P., Milonas, Asch and Rubin, JJ.