WDF Inc. v. Trustees of Columbia Univ. in the City of N.Y. , 156 A.D.3d 530 ( 2017 )

WDF Inc. v Trustees of Columbia Univ. in the City of N.Y. (2017 NY Slip Op 08744)

WDF Inc. v Trustees of Columbia Univ. in the City of N.Y.

2017 NY Slip Op 08744

Decided on December 14, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 14, 2017
Gische, J.P., Webber, Oing, Singh, Moulton, JJ.

651250/16 5237 5236

[*1]WDF Inc., Plaintiff-Appellant,

v

The Trustees of Columbia University in the City of New York, et al., Defendants-Respondents.

Pepper Hamilton LLP, New York (Frank T. Cara of counsel), for appellant.

Zetlin & De Chiara LLP, New York (James J. Terry of counsel), for The Trustees of Columbia University in the City of New York, respondent.

Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for Lend Lease (US) Construction LMB, Inc., respondent.

Orders, Supreme Court, New York County (Barry R. Ostrager, J.), entered November 15, 2016, which, to the extent appealed from as limited by the briefs, granted defendants' motions to dismiss the second cause of action as to all claims for costs incurred due to delays caused by a stop work order and the third and fourth causes of action in their entirety, unanimously affirmed, with costs.

The subcontract entered into by plaintiff contained a no-damages-for-delay provision. Such a provision "is valid and enforceable and is not contrary to public policy" where, as here, "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 [1986]).

While the complaint here recites a list of purported causes for delays allegedly attributed to defendants, it sets forth no factual allegations in support of such claims. Similarly, it makes no factual allegations supporting the conclusory claim that such alleged delays fell within the exceptions to the no-damages-for-delay rule (see Corinno , 67 NY2d at 309). Moreover, in opposition to defendants' motions to dismiss pursuant to CPLR 3211(a)(1) and (7), plaintiff failed to submit any affidavits or other materials that remedied the defects in the complaint (Leon v Martinez , 84 NY2d 83, 88 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 14, 2017

CLERK