Mars Associates, Inc. v. City of New York — 53 N.Y.2d 627

Majority

p. 627

Mars Associates, Inc., et al., Appellants, v City of New York, Respondent.

Argued February 10, 1981;

decided March 24, 1981

p. 628

APPEARANCES OF COUNSEL

Louis Cantor for appellants.

p. 629

Allen G. Schwartz, Corporation Counsel (James Griffin, Francis F. Caputo, Angelo Aiosa and Carolyn Herman of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The judgment appealed from and-the order of the Appellate Division brought up for review should be affirmed, with costs, for the reasons stated in that court’s memorandum.

In addition, we note that the circumstances of the waiver demonstrate as a matter of law that it was designed to cover the claim upon which plaintiff now sues. Plaintiff is a sophisticated contractor, and in withstanding the motion for summary judgment it did not show that the instant claim for delay damages was covered by the exceptions from the blanket waiver. Those exceptions covered “various change orders and work under protest”, and the parties have used these terms to refer to extra work beyond the original contract, not claims for damages by reason of acts or omissions of the city. If the exemptions were intended to be broader in scope, it was incumbent upon plaintiff to state its intentions with clarity.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.