Davis Construction Corp. v. County of Suffolk

Full title: DAVIS CONSTRUCTION CORPORATION, Appellant, v. COUNTY OF SUFFOLK, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 3, 1989

149 A.D.2d 404 (N.Y. App. Div. 1989)

539 N.Y.S.2d 757

Opinion

April 3, 1989

Appeal from the Supreme Court, Suffolk County (Baisley, J.).

Ordered that the orders are affirmed, with one bill of costs.

The appeals have their genesis in a construction contract entered into between the plaintiff Davis Construction Corp. and the defendant County of Suffolk for reconstruction of part of a road. The plaintiff's first cause of action in its amended complaint was predicated on the delays the plaintiff allegedly experienced which were due to obstructions such as underground utility lines. It is the plaintiff's position that the defendant is accountable for the extra expenses which it incurred as the result of the delays. The defendant responds that these claims are barred by the so-called "no-damage-for-delay" clauses in the contract and related documents. The Supreme Court granted the defendant's motion for summary judgment dismissing this claim. The dispositive issue is whether, as a matter of law, the delays were contemplated by the parties. We find that the contract and related documents expressly imposed upon the plaintiff the burden to check for obstructions and foreclosed damages for such delays (see, Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297; Thomason Perry v. State of New York, 38 A.D.2d 609, affd 30 N.Y.2d 836). While we recognize that willful conduct or gross negligence may serve to overcome the bar of the "no-damage-for-delay" clauses (see, Kalisch-Jarcho, Inc. v. City of New York, 58 N.Y.2d 377), it is undisputed that any tort claims which this plaintiff may have are foreclosed, as time barred, pursuant to General Municipal Law § 50-i.

The plaintiff's second cause of action in its amended complaint was also properly dismissed. This claim for misrepresentation, which was predicated on the defendant's alleged willful or negligent actions, sounds in tort (see, Blessington v. McCrory Stores Corp., 305 N.Y. 140, 147-148; Alyssa Originals v Finkelstein, 22 A.D.2d 701, affd 24 N.Y.2d 976). As noted, however, the plaintiff is foreclosed in this case from asserting tort claims. Even if this claim sounded in contract, it would be barred by the exculpatory clauses in the parties' contract (see, Conduit Found. Corp. v. State of New York, 52 N.Y.2d 1064, rearg denied 53 N.Y.2d 798). Mangano, J.P., Lawrence, Eiber and Spatt, JJ., concur.