Tougher Industries, Inc. v. Northern Westchester Joint Water Works

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered September 10, 2002, as granted the defendant’s motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated.

Clauses in construction contracts which bar contractors from recovering damages for delay in the performance of the contract are generally valid and enforceable (see Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297 , 309 [1986]; Kalisch-Jarcho v City of New York, 58 NY2d 377 , 384 [1983]). However, there are exceptions to this general rule, and a clause which purports to preclude damages for all delays resulting from any cause whatsoever will not be read literally (see Corinno Civetta Constr. Corp. v City of New York, supra at 309). Thus, even where a contract includes a provision barring damages for delay, “damages may be recovered for: (1) delays caused by the contractee’s bad faith or its willful, malicious, or grossly negligent conduct, (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee, and (4) delays resulting from the contractee’s breach of a fundamental obligation of the contract” (id. at 309).