Opinion
2014-02-4
POLO ELECTRIC CORP., Plaintiff–Appellant, v. NEW YORK LAW SCHOOL, Defendant–Respondent, “John Doe# 1,” et al., Defendants.
Marc E. Elliott, P.C., New York (Marc E. Elliott of counsel), for appellant. Schiff Hardin LLP, New York (Frank L. Wagner of counsel), for respondent.
Marc E. Elliott, P.C., New York (Marc E. Elliott of counsel), for appellant. Schiff Hardin LLP, New York (Frank L. Wagner of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, SAXE, MOSKOWITZ, JJ.
Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 23, 2012, which granted defendants' motion to dismiss the first, third, and fourth causes of action of the amended complaint, to dismiss the amended complaint in its entirety as against defendant Pavarini McGovern, LLC, and to declare that any remaining damages claims for additional work, delay, or acceleration were precluded by the parties' contract, unanimously affirmed, without costs.
The causes of action relating to additional work, delay and acceleration of scheduled work were properly dismissed, as the alleged cause of the delays was within the contemplation of the “no damages for delay” clauses in the parties' contract ( see Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 313–314, 502 N.Y.S.2d 681, 493 N.E.2d 905 [1986]; Bovis Lend Lease (LMB), Inc. v. Lower Manhattan Dev. Corp., 108 A.D.3d 135, 966 N.Y.S.2d 51 [1st Dept. 2013] ). No exceptions to enforcement of those clauses are applicable or were agreed to by the parties.
The motion court also properly determined that plaintiff was not wrongfully terminated and that, under the contract, defendants could reduce plaintiff's contractual work. In addition, plaintiff is precluded from recovery on a theory of unjust enrichment by the existence of the contract ( see Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 388, 521 N.Y.S.2d 653, 516 N.E.2d 190 [1987] ).
Defendant Pavarini McGovern, LLC, an agent of the disclosed principal, defendant New York Law School, was not personally bound ( see Savoy Record Co. v. Cardinal Export Corp., 15 N.Y.2d 1, 4, 254 N.Y.S.2d 521, 203 N.E.2d 206 [1964] ).