843 N.Y.S.2d 309 | N.Y. App. Div. | 2007
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered January 13, 2006, which, to the extent appealed from, granted defendants’ motion to dismiss the fifth cause of action in the fourth amended complaint seeking delay damages, unanimously affirmed, without costs.
While the motion court dismissed plaintiff construction contractor’s claim for delay damages as barred by the “no-damages-for-delay” provision contained in the parties’ contract, we affirm the dismissal of the claim for delay damages solely upon the ground that it is premature. The contract bars claims against the construction manager “on account of the Contract Price for the Project” until the completion of available mechanic’s lien enforcement actions, and two such causes of action are alleged in the fourth amended complaint. Although plaintiff contends that the clause requiring exhaustion of Lien Law remedies is unenforceable, the provision at issue does not offend the prohibition against indefinitely suspending a contractor’s right to enforce its mechanics’ liens (cf. West-Fair Elec. Contrs. v Aetna Cas. & Sur. Co., 87 NY2d 148 [1995]). Concur—Andrias, J.P., Saxe, Friedman, Nardelli and Malone, JJ.
Reargument granted and upon reargument, the decision and order of this Court entered on June 14, 2007 (41 AD3d 210 [2007]) recalled and vacated and a new decision and order substituted therefor.
