

Trocom Constr. Corp. v City of New York (2019 NY Slip Op 02816)





Trocom Constr. Corp. v City of New York


2019 NY Slip Op 02816


Decided on April 11, 2019


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 April 11, 2019

Friedman, J.P., Sweeny, Webber, Gesmer, Singh, JJ.


8966 650148/12

[*1]Trocom Construction Corp., Plaintiff-Appellant,
vThe City of New York, Defendant, Consolidated Edison Company of New York, Inc., Defendant-Respondent.


Goetz Fitzpatrick LLP, New York (Donald J. Carbone of counsel), for appellant.
Rubin Paterniti Gonzalez Kaufman LLP, New York (Juan C. Gonzalez of counsel), for respondent.

Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered October 6, 2017, which, to the extent appealed from as limited by the briefs, granted defendant Consolidated Edison Company's motion for summary judgment dismissing the second cause of action for delay damages as against it, unanimously modified, on the law, to deny the motion as to claims 4, 5 and 16 in the bill of particulars, and otherwise affirmed, without costs.
As the motion court found, the construction contract between plaintiff and defendant City broadly precludes delay damages; the exception is delay damages associated with defendant Con Ed's failure to timely provide Specialty Contractors. In opposition to Con Ed's motion, plaintiff submitted evidence sufficient to raise an issue of fact whether the delays outlined in claims 4, 5 and 16 of the 48 claims in its bill of particulars are attributable to the unavailability of Con Ed Specialty Contractors.
We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 11, 2019
CLERK


