On claim for delay damages, existence of no-damage-for-delay clause in construction agreement is insufficient to establish entitlement to dismissal where conduct or conditions were not contemplated at time of contractor’s bid.

The plaintiff-contractor sought to recover damages for breach of a construction contract for the renovation of a school, alleging that the defendant impeded, interfered with and delayed the plaintiff’s work, made excessive and untimely changes to the sequence of the work, gave improper orders and directives, and required the plaintiff to perform additional and extra work for which it refused to pay under the contract. The defendant moved pre-answer to dismiss based on a no-damage-for-delay clause in the agreement between the parties. In opposition to the defendant’s motion, the plaintiff submitted business records and an affidavit from its project manager that the plaintiff encountered unforeseen site conditions affecting both the cost and timing of the work and that such conditions caused delays not contemplated at the time of bid. The Appellate Division, Second Department noted that, while generally a clause barring a contractor from recovering damages for delays in the performance of the work will prevent recovery of damages resulting from a broad range of reasonable and unreasonable conduct by the contractee if the conduct was contemplated by the parties when they entered into the agreement, the existence of the clause, standing alone, was insufficient to establish the defense as a matter of law.

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