464 B.R. at 570 (citing Thalle Const. Co., Inc. v. Whiting–Turner Contracting Co., Inc., 39 F.3d 412, 417 (2d Cir.1994)). GII principally relies on Thalle,All–States Commc'ns, Inc. v. New York Tel. Co., No. 96–CV–5740, 1997 WL 729033 (S.D.N.Y. November 24, 1997) and P.T. & L. Constr. Co., Inc. v. State, 179 A.D.2d 850, 578 N.Y.S.2d 921 (3d Dept't 1992) for the proposition that the Documents set forth only inadmissible information. But the procedural posture in each of the three aforementioned cases is very different from that of the case at bar.

2011 WL 4618852 at * 10 (citing Thalle Const. Co., Inc. v. Whiting-Turner Contracting Co., Inc., 39 F.3d 412, 417 (2d Cir. 1994)). GII principally relies on Thalle, All-States Commc 'ns, Inc. v. New York Tel. Co., No. 96-CV-5740, 1997 WL 729033 (S.D.N.Y. November 24, 1997) and PT & L. Constr. Co., Inc. v. State, 179 AD 2d 850 (3d Dept't 1992) for the proposition that the Documents set forth only inadmissible information. But the procedural posture in each of the three aforementioned cases is very different from that of the case at bar.

Therefore, according to plaintiff, it is part of the Sept. 1998 Contract so work performed under the agreement is covered by the Bond issued by defendant. Under New York law notices to proceed are prerequisites to commencing municipal construction jobs. P.T. L. Construction Company, Inc., v. State of New York, 179 A.D.2d 850, 852 n. 2 (3d Dep't 1992). The Sept. 1998 Contract provided in sections 30-11 and 80-02 that notices to proceed would be given at different stages.

Mosler Safe Co. v. Maiden Lane Safe Deposit Co. ( 199 N.Y. 479) established the general rule that where delays are caused by the mutual fault of the parties to a contract, a liquidated damage clause is abrogated and a claimant must resort to recovery for actual damages. It would be inequitable and illogical to allow a claimant to reap the benefit of the liquidated damage clause for its own wrongdoing ( cf. X.L.O. Concrete Corp. v. John T. Brady Co., 66 N.Y.2d 970, affg 104 A.D.2d 181). Applying this rationale to the circumstances herein, the trial court correctly instructed the jury that the liquidated damage clause would be abrogated only if plaintiffs' conduct with respect to certain specific acts allegedly contributing to the delays was wrongful or arbitrary and capricious. In any event, the record does not support a finding that plaintiffs' actions materially contributed to the delays ( see P.T. L. Constr. Co. v. State of New York, 179 A.D.2d 850). We have considered defendant's other arguments and find them unpersuasive.