On June 5, 2025, the First Department issued a decision in Gamma USA, Inc. v. Pavarini McGovern, LLC, 2025 NY Slip Op. 03380, finding that none of the exceptions to a no damages for delay clause applied, explaining:
Supreme Court correctly dismissed the first cause of action because the parties’ subcontract, which defendant submitted on its motion to dismiss, flatly rejected plaintiff’s allegations that it was entitled to damages caused by delay in the project. Under the plain terms of the subcontract, the no-damages-for-delay clause expressly exculpates defendant from liability to plaintiff for damages resulting from delays in defendant’s work.
. . .
Despite plaintiff’s contentions, the allegations in the first cause of action, even if true, do not show that plaintiffs may recover under any of the recognized exceptions to application of exculpatory language. Defendant’s alleged conduct does not smack of intentional wrongdoing, nor does it bespeak a reckless indifference to the rights of others. Instead, defendant’s alleged actions amount at most to inept administration or poor planning, which does not obviate application of the no-damages-for-delay provision.
Furthermore, the alleged delays in commencement, prosecution, and completion of plaintiff’s work did not constitute uncontemplated delays for which a plaintiff may recover damages even in the face of a no-damages-for-delay clause. In fact, each type of delay was specifically mentioned in the subcontract’s no-damages-for-delay clause. Moreover, that there was a year-long delay in the commencement of plaintiff’s work is of no moment, as the length of a delay does not transform a delay of a type specifically contemplated in a no-damages-for-delay clause into an uncontemplated delay.
Similarly, the allegations in the complaint do not show that defendant breached a fundamental, affirmative obligation that would support recovery for delay damages even in light of the no damages for delay clause. On the contrary, that exception is applied to only a narrow range of circumstances not presented here. Even if plaintiff’s allegations that defendant failed to provide critical path method schedules and instead provided two-week look-ahead schedules, were true, it does not constitute a fundamental breach of the contract. Nor does defendant’s decision to remove a crane constitute a breach of a fundamental obligation, as plaintiff identifies no contractual terms that would support such a conclusion. Defendant’s alleged representation that a crane would be available for oversized panels is not incorporated in the crane and hoist-related scope of work provisions, which warn that hoist size and capacity are limited and place responsibility on plaintiff to hoist items that exceed the hoist capacity. Finally, the site logistics plan was expressly subject to change, while the subcontract further required plaintiff to coordinate all material deliveries and their storage locations with defendant and to move stored materials at defendant’s direction.
(Internal quotations and citations omitted).