Advanced Automatic Sprinkler Co., Inc. v. Seaboard Sur. Co.

Advanced Automatic Sprinkler Co., Inc. v Seaboard Sur. Co. (2016 NY Slip Op 03444)

Advanced Automatic Sprinkler Co., Inc. v Seaboard Sur. Co.

2016 NY Slip Op 03444

Decided on May 3, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 3, 2016
Mazzarelli, J.P., Friedman, Andrias, Moskowitz, Kahn, JJ.

1045 650321/11

[*1]Advanced Automatic Sprinkler Co., Inc., Plaintiff-Appellant,

v

Seaboard Surety Company, Defendant-Respondent.

Mastropietro Law Group, PLLC, New York (Eric W. Gentino of counsel), for appellant.

Tunstead & Schechter, Jericho (Michael D. Ganz of counsel), for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered December 5, 2014, which granted defendant's motion for summary judgment dismissing the cause of action for delay damages, unanimously affirmed, with costs.

Plaintiff presented no evidence that any material delay in the construction project was attributable to the nonparty prime contractor for whose benefit defendant issued a payment bond (see Triangle Sheet Metal Works v Merritt & Co., 79 NY2d 801 [1991]).

In any event, the subcontract contains a "no damages for delay" clause, and plaintiff failed to meet its heavy burden of establishing an exception to the rule that such a clause will be enforced (see LoDuca Assoc., Inc. v PMS Constr. Mgt. Corp., 91 AD3d 485 [1st Dept 2012]). As the motion court found, the delays that plaintiff seeks to impute to the prime contractor constitute, at most, "inept administration" or "poor planning," and do not, as plaintiff contends, evince bad faith on the prime contractor's part (see id.). Nor, contrary to plaintiff's contention, were the delays uncontemplated, and, in any event, under the contract, plaintiff assumed the risk for all delay damages, "whether contemplated or uncontemplated."

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 3, 2016

CLERK