By Michael L. Chartan, partner in the Construction Group in Duane Morris’ New York office
Construction contracts in New York and in other states frequently include provisions that bar recovery of damages for delay and require extra work to be authorized in writing. These types of provisions are enforceable. Exceptions exist that will permit recovery of delay damages and for extra work in the face of these exculpatory provisions. In Bricklayers Ins. & Welfare Fund v. Minhas Gen. Contrs. Co., LLC, 2015 U.S. Dist. LEXIS 151965, Judge Frederic Block sitting in the United States District Court for the Eastern District of New York, denied summary judgment finding triable issues of material fact. Subcontractors and general contractors have limited leverage to remove these types of provisions from the contract. Nonetheless, review of project records by a knowledgeable attorney may well reveal facts to overcome these provisions.