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Contract Provision Protected Contractee from Damages for Delay Caused by Regulators​

In a full-fledged opinion by Justice Mazzarelli, the First Department determined, among many other contract-issues, that delays allegedly caused by regulators (re: asbestos-removal) were included in the contract provision which insulated the contractee from delay-related damages:

“A clause which exculpates a contractee from liability to a contractor [Bovis] for damages resulting from delays in the performance of the latter’s work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally”…. However, such a clause may be disregarded under certain recognized exceptions, including one for delays that are “uncontemplated” …. Delays are not considered uncontemplated when they “are reasonably foreseeable, arise from the contractor’s work during performance, or . . . are mentioned in the contract” …. Further, a party seeking to invoke any of the exceptions to the general rule that no damages for delay clauses are enforceable bears a heavy burden … .

Here, Bovis failed to carry its heavy burden. The contract specifically anticipated the possibility that the involvement of regulators would delay the process. Again, Bovis expressly acknowledged that it assumed the “risk of all regulatory and other Governmental Authority delays.” Certainly this lifted the no damages for delay clause out of the exception for uncontemplated delays. There is no basis for Bovis to argue that by alleging that the extent of the regulatory delays was extreme and unprecedented it stated a claim for delay damages. As this Court has stated in finding a no damages for delay clause enforceable, “[W]hile the conditions themselves may not have been anticipated, the possibility, however unlikely, of their arising was contemplated and addressed by the parties in their agreement” … .  Bovis Lend Lease (LMB), Inc v Lower Manhattan Dev Corp, 2013 NY Slip Op 03804, 1st Dept, 5-28-13

CONSTRUCTION CONTRACT

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