Opinion
17451 Index No. 161465/19 Case No. 2022–00791
03-07-2023
HENICK–LANE, INC., Plaintiff–Appellant, v. 616 FIRST AVENUE LLC, et al., Defendants–Respondents.
Stein Adler Dabah & Zelkowitz LLP, New York (Jacob E. Lewin of counsel), for appellant. Fox Swibel Levin & Carroll LLP, New York (Daniel A. Dorfman of counsel), and The Augello Law Firm, PC, Garden City (Cynthia A. Augello of counsel), for respondents.
Stein Adler Dabah & Zelkowitz LLP, New York (Jacob E. Lewin of counsel), for appellant.
Fox Swibel Levin & Carroll LLP, New York (Daniel A. Dorfman of counsel), and The Augello Law Firm, PC, Garden City (Cynthia A. Augello of counsel), for respondents.
Renwick, J.P., Singh, Kennedy, Mendez, Rodriguez, JJ.
Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about November 24, 2021, which granted defendants’ motion to dismiss the third cause of action, unanimously reversed, on the law, with costs, and the motion denied.
The subcontractor agreement between plaintiff and defendant JDS Construction Group LLC contains clauses precluding damages for delay. It also provides that if plaintiff's work was "delayed or disrupted by fault of [JDS], Architect, or any other contractor, or by abnormal weather conditions, then the time fixed for the completion of the Work shall be extended for a period equivalent to the time actually lost, in the discretion of [JDS] and compensated for additional, mutually agreed to costs, " with the words in italics handwritten onto the typed agreement.
According plaintiff every favorable inference, a valid claim is stated, and the documentary evidence does not utterly refute plaintiff's allegations ( CPLR 3211[a][1], [7] ; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). In interpreting a contract, a handwritten provision that conflicts with the language of the preprinted form document will control, "as it is presumed to express the latest intention of the parties" ( Home Fed. Sav. Bank v. Sayegh, 250 A.D.2d 646, 647, 671 N.Y.S.2d 698 [2d Dept. 1998] [internal quotation marks omitted]; see also Er–Loom Realty, LLC v. Prelosh Realty, LLC, 77 A.D.3d 546, 548, 909 N.Y.S.2d 714 [1st Dept. 2010], lv denied 16 N.Y.3d 710, 2011 WL 1584722 [2011] ). The handwritten amendment to the no-damages-for-delay clause renders the clause ambiguous as to whether plaintiff is entitled to be compensated for costs incurred as a result of such delays, which requires discovery to discern the parties’ intent (see Eldor Contr. Corp. v. County of Nassau, 6 A.D.3d 654, 655, 775 N.Y.S.2d 556 [2d Dept. 2004] ; see generally Khayyam v. Doyle, 231 A.D.2d 475, 476, 647 N.Y.S.2d 507 [1st Dept. 1996] ).
Absent the ambiguity created by the handwriting addition, the no damage for delay clause is otherwise enforceable because-plaintiff's delay claims were contemplated by the agreement and therefore no exception to the enforceability of a "no damages for delay" clause applies (see Arnell Constr. Corp. v. New York City Sch. Constr. Auth., 177 A.D.3d 595, 597, 112 N.Y.S.3d 169 [2d Dept. 2019] ; LoDuca Assoc., Inc. v. PMS Constr. Mgt. Corp., 91 A.D.3d 485, 485–486, 936 N.Y.S.2d 192 [1st Dept. 2012] ).