Opinion
2003-02415.
Decided April 26, 2004.
In an action to recover damages for breach of a construction contract, the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Ort, J.), entered September 26, 2002, as denied its motion for summary judgment dismissing the plaintiff's second cause of action to recover delay damages, and the third-party defendants separately appeal, as limited by their brief, from so much of the same order as denied that branch of their separate motion which was for summary judgment dismissing that cause of action.
Lorna B. Goodman, County Attorney, Mineola, N.Y. (Peter J. Clines of counsel), for defendant third-party plaintiff-appellant.
Torre, Lentz, Gamell, Gary Rittmaster, LLP, Jericho, N.Y. (Benjamin D. Lentz and Lawrence S. Novak of counsel), for third-party defendants-appellants.
Jaspan Schlesinger Hoffman LLP, Garden City, N.Y. (Charles W. Segal and Christopher E. Vatter of counsel), for respondent.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, SONDRA MILLER, GLORIA GOLDSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.
The Supreme Court properly declined to grant summary judgment dismissing the plaintiff's second cause of action to recover delay damages incurred during the performance of the subject construction contract. The length of the delay, and the documentation submitted by the plaintiff, including an estimate of the plaintiff's delay damages prepared by the County of Nassau, raised an issue of fact as to whether the plaintiff was entitled to delay damages. In addition, an issue of fact exists as to whether a clause in the contract entitled "no damage for delay" was enforceable. The plaintiff adduced sufficient evidence from which a jury could reasonably conclude that the County waived that clause ( see Wilson English Constr. Co. v. New York Cent. R.R. Co., 240 A.D. 479, 483). In the alternative, an issue of fact exists as to whether the "no damage for delay" clause conflicted with another clause in the contract entitled "claims for damages" which set forth a procedure for filing claims for damages and was ambiguous as to its applicability to delay damages ( see Icon Motors v. Empire State Datsun, 178 A.D.2d 463). There also exists an issue of fact as to whether the delay was not contemplated by the parties, and therefore, was an exception to the "no damage for delay" clause ( see Abax Inc. v. New York City Hous. Auth., 282 A.D.2d 372, 373; Gray, Inc. v. City School Dist. of Albany, 277 A.D.2d 843; Castagna Son v. Board of Educ. of City of N.Y., 173 A.D.2d 405).
The parties' remaining contentions are without merit.
SANTUCCI, J.P., ALTMAN, S. MILLER and GOLDSTEIN, JJ., concur.