SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

379 

CA 15-01018 

PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

WEYDMAN ELECTRIC, INC., PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

JOINT SCHOOLS CONSTRUCTION BOARD, CITY OF 

SYRACUSE AND SYRACUSE CITY SCHOOL DISTRICT, 

DEFENDANTS-RESPONDENTS. 

 

SHEATS & BAILEY, PLLC, BREWERTON (JASON BAILEY OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

HANCOCK ESTABROOK, LLP, SYRACUSE (JOHN G. POWERS OF COUNSEL), AND

ROBERT P. STAMEY, CORPORATION COUNSEL, FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Onondaga County

(Deborah H. Karalunas, J.), entered February 19, 2015. The order

granted defendants’ motion for summary judgment dismissing the amended

complaint. 

It is hereby ORDERED that the order so appealed from is 

unanimously affirmed without costs.

Memorandum: Plaintiff subcontractor commenced this action

seeking damages for delays allegedly caused by defendants and their

construction manager on a school renovation project. Insofar as

relevant to this appeal, plaintiff’s amended complaint alleges a cause

of action for breach of contract for nonpayment. Defendants moved for

summary judgment dismissing the amended complaint on the ground, inter

alia, that plaintiff’s claims are barred by the no-damages-for-delay

provisions of the contract. Supreme Court granted the motion on the

basis of, inter alia, the exculpatory provisions of the contract. We

affirm.

It is well settled that “[a] clause which exculpates a contractee

from liability to a contractor for damages resulting from delays in

the performance of the latter’s work is valid and enforceable and is

not contrary to public policy if the clause and the contract of which

it is a part satisfy the requirements for the validity of contracts

generally” (Corinno Civetta Constr. Corp. v City of New York, 67 NY2d

297, 309, rearg denied 68 NY2d 753; see McNamee Constr. Corp. v City

of New Rochelle, 60 AD3d 918, 919, lv denied 13 NY3d 715). However,

“even with such a clause, 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
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CA 15-01018 

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”

(Corinno Civetta Constr. Corp., 67 NY2d at 309-310). Initially, we

reject plaintiff’s contention that there is a material distinction

between damages caused by delay and those caused by “disruption,”

which plaintiff contends are not barred by the exculpatory provisions. 

That contention rests on nothing more than semantics, and it is clear

that plaintiff’s claim is that the alleged “disruption” resulted in

delayed performance of its work. 

Contrary to plaintiff’s further contention, we conclude that

defendants met their prima facie burden on their motion of

establishing that the damages sought by plaintiff for delays in the

performance of its work are barred by the no-damages-for-delay

exculpatory clause of the parties’ contract (see Aurora Contrs., Inc.

v West Babylon Pub. Lib., 107 AD3d 922, 923-924). It then became

incumbent upon plaintiff in opposition to meet the “heavy burden” of

establishing the applicability of one of the exceptions to the general

rule that no-damages-for-delay clauses are enforceable (Bovis Lend

Lease [LMB], Inc. v Lower Manhattan Dev. Corp., 108 AD3d 135, 147; see

LoDuca Assoc., Inc. v PMS Constr. Mgt. Corp., 91 AD3d 485, 485). In

this regard, we note that plaintiff’s amended complaint did not plead

any of the exceptions set forth in Corinno and, in opposition to the

motion, “[p]laintiff . . . failed to raise a triable factual issue

that the delays cited are exempt from the no-damages-for-delay clause. 

No evidence was presented that the conduct alleged was the result of

[defendants’] gross negligence or willful misconduct. Instead, the

conduct amounted to nothing more than inept administration or poor

planning, which falls within the contract’s exculpatory clause”

(Commercial Elec. Contrs., Inc. v Pavarini Constr. Co., Inc., 50 AD3d

316, 317-318). Even assuming arguendo that the project was

dysfunctional and poorly managed, as plaintiff contends, we conclude

that the exculpatory provisions bar plaintiff’s claims (see LoDuca

Assoc., Inc., 91 AD3d at 486; Blue Water Envtl., Inc. v Incorporated

Vil. of Bayville, N.Y., 44 AD3d 807, 810, lv denied 10 NY3d 713). 

Moreover, plaintiff’s claims, inter alia, that the work was performed

out of sequence, poorly coordinated, and plagued by design changes

were clearly contemplated by the exculpatory provisions of the

contract (see LoDuca Assoc., Inc., 91 AD3d at 485-486). We further

conclude that plaintiff failed to allege facts and circumstances

establishing that defendants breached a fundamental, affirmative

obligation of the contract (see Corinno Civetta Constr. Corp., 67 NY2d

at 313). Plaintiff’s contention that defendants’ conduct amounted to

an abandonment of the project is raised for the first time on appeal

and thus is not properly before us (see Ciesinski v Town of Aurora,

202 AD2d 984, 985), and it is in any event without merit.

We reject plaintiff’s further contention that the court erred in

granting the motion without providing plaintiff the opportunity to

complete discovery. Although a motion for summary judgment may be

opposed on the ground “that facts essential to justify opposition may

exist but cannot then be stated” (CPLR 3212 [f]), “the opposing party
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CA 15-01018 

must make an evidentiary showing supporting this conclusion, mere

speculation or conjecture being insufficient” (Pank v Village of

Canajoharie, 275 AD2d 508, 509). Plaintiff failed to make the

necessary evidentiary showing.

In light of our determination, we do not consider plaintiff’s

remaining contentions.

Entered: June 10, 2016 Frances E. Cafarell

Clerk of the Court