Opinion
8966 Index 650148/12
04-11-2019
TROCOM CONSTRUCTION CORP., Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant, Consolidated Edison Company of New York, Inc., Defendant–Respondent.
Goetz Fitzpatrick LLP, New York (Donald J. Carbone of counsel), for appellant. Rubin Paterniti Gonzalez Kaufman LLP, New York (Juan C. Gonzalez of counsel), for respondent.
Goetz Fitzpatrick LLP, New York (Donald J. Carbone of counsel), for appellant.
Rubin Paterniti Gonzalez Kaufman LLP, New York (Juan C. Gonzalez of counsel), for respondent.
Friedman, J.P., Sweeny, Webber, Gesmer, Singh, JJ.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 6, 2017, which, to the extent appealed from as limited by the briefs, granted defendant Consolidated Edison Company's motion for summary judgment dismissing the second cause of action for delay damages as against it, unanimously modified, on the law, to deny the motion as to claims 4, 5 and 16 in the bill of particulars, and otherwise affirmed, without costs.
As the motion court found, the construction contract between plaintiff and defendant City broadly precludes delay damages; the exception is delay damages associated with defendant Con Ed's failure to timely provide Specialty Contractors. In opposition to Con Ed's motion, plaintiff submitted evidence sufficient to raise an issue of fact whether the delays outlined in claims 4, 5 and 16 of the 48 claims in its bill of particulars are attributable to the unavailability of Con Ed Specialty Contractors.
We have considered plaintiff's remaining arguments and find them unavailing.