Opinion
March 11, 1993
Appeal from the Supreme Court, New York County (Alfred Toker, J.).
Pursuant to an agreement between the parties dated on or about January 29, 1990, plaintiff was to supply labor and materials to install furniture, fixtures and equipment at the Hotel Macklowe. Since Article 15 of the agreement provided for no payment or allowances due to delays from any cause, defendants are not liable for damages resulting from delays (see, Corinno Civetta Constr. Corp. v. City of New York, 67 N.Y.2d 297, 309). While plaintiff contends that the parties orally modified the contract with respect to delay damages by agreement to pay a portion of two invoices, plaintiff also admits that no such payment for delay damages was actually made. Further, Article 24 contained a non-waiver clause, entitling defendants to avail themselves of the terms and conditions of the contract.
As the claimed modification of the contract is unsupported, the court properly dismissed that portion of the complaint seeking damages due to delays.
Concur — Sullivan, J.P., Milonas, Asch and Rubin, JJ.