On October 17, 2023, the First Department issued a decision in Five Star Elec. Corp. v. Silverite Constr. Co., Inc., 2023 NY Slip Op. 05224, enforcing a no damages for delay provision, explaining:
The court correctly determined that plaintiff’s breach of contract claim, to the extent dismissed, was foreclosed by the no-damage-for-delay provision in the subcontract between plaintiff and defendant Silverite Construction Company, Inc. Contrary to plaintiff’s contention, plaintiff is collaterally estopped from relitigating the enforceability of the no-damage-for-delay clause by the decision in Five Star Elec. Corp. v Silverite Constr. Co., Inc. (Sup Ct, NY County, July 30, 2020, Joel M. Cohen, J., Index No. 654461/2016). There, the court upheld the enforceability of the no-damage-for-delay clause in an identical contract between plaintiff and Silverite, thereby necessarily deciding the precise issue raised in this case.
Furthermore, here, plaintiff has not shown that an exception to the enforceability of the no-damage-for-delay clause applies. The conclusory allegations in the complaint that merely recite the exceptions are insufficient to plead the exceptions, and the allegation that Silverite failed to take reasonable measures to coordinate plaintiff’s work and address the delays on the project are insufficient to show bad faith, or willful, malicious, or grossly negligent conduct.
Given the unambiguous non-waiver clause in Section 15.3 of the subcontract, Silverite did not waive its right to enforce the no-damage-for-delay provision by submitting plaintiff’s claims for delay damages to SCA as part of Silverite’s settlement discussions with SCA.
(Internal quotations and citations omitted).