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Superb General Contracting Co. v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 18, 2010

SUPERB GENERAL CONTRACTING CO., PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, DEFENDANT-RESPONDENT, SMB GENERAL CONTRACTING CORP., ET AL., DEFENDANTS.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 4, 2009, which, in an action by a contractor against the City to recover delay damages incurred in the performance of a subcontract involving the rehabilitation of City-owned housing, inter alia, granted the City's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

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.

Andrias, J.P., Catterson, Renwick, DeGrasse, Manzanet-Daniels, JJ.

118230/99

Plaintiff, a subcontractor hired by the construction manager to perform the rehabilitation, was not in privity of contract with the City as property owner (see Kelly Masonry Corp. v Presbyterian Hosp. in City of N.Y., 160 AD2d 192, 193 [1990]), and therefore cannot recover delay damages against the City as owner where the incorporated prime contract specifically provided that the construction manager was an independent contractor and not an agent or representative of the City (cf. id.). In any event, assuming privity, delay damages are expressly excluded by section 3.6(f) of the subcontract, which provides instead that full compensation for delay was to be in the form of an extension of time to complete the work, which it is undisputed plaintiff received (see Lasker-Goldman Corp. v City of New York, 221 AD2d 153, 154 [1995], lv dismissed 87 NY2d 1055 [1996]). We have considered plaintiff's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100218

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