New York Courts Will Apply ‘No-Damages-For-Delay’ Provision to Preclude ‘Extra Work’ Claims

Through a “no-damages-for-delay” provision limiting a party’s ability to recover delay damages, parties to a construction contract allocate the risk associated with time for performance and the burden of increased cost associated therewith.^[1] Deemed exculpatory in nature, New York courts enforce clear and unambiguous no-damages-for-delay provisions that do not fall within one of the four exceptions recognized by the Court of Appeals. Specifically, the exceptions—known as the Corinno Civetta exceptions—are “(1) delays caused by the contractee’s bad faith or its willful, malicious, or grossly negligent conduct, (2) uncontemplated delays, (3) delays so unreasonable that they constitute an intentional abandonment of the contract by the contractee, and (4) delays resulting from the contractee’s breach of a fundamental obligation of the contract.”^[2]

In another recent decision, the First Department evaluated whether a subcontractor’s claims for “extra work” were barred by the no-damage-for-delay provision found in the subcontract. The extra work claims were change order requests that were “predicated on obstructions, hindrances, or delays allegedly caused by” owner and its contractor, including those caused by changes in the work. In Henick-Lane, LLC v. Stellar Management Group, Inc., et al.,^[3] the First Department unanimously affirmed summary judgment as the subcontractor’s “change order requests are subject to the no-damages-for-delay clause in the parties subcontract, notwithstanding [the subcontractor’s] characterization of its change order requests as being for extra work, instead of delay damages.”

After determining that the no-damage-for-delay provision applied to the subcontractor’s extra work claims, the Henick-Lane court considered the trial court’s holding that none of the Corinno Civetta exceptions applied to the dispute. Concurring with the trial court, the First Department found that evidence of “inept administration or poor planning” is insufficient to “negate” the no-damage-for-delay provision. Moreover, the First Department found that the “prevention doctrine,” which relates to the frustration of a contractual condition precedent, did not apply to exculpatory clauses such as the subcontract’s no-damage-for-delay provision.

Beyond reminding practitioners that New York courts uphold enforceable no-damages-for-delay provisions, Henick-Lane affirms that courts will evaluate the type and nature of claims—no matter how styled—in considering whether a no-damage-for-delay applies.

Author Gaetano Piccirilli, partner, is a member of the Litigation Department and construction practice group at Klehr Harrison.

[1] New York’s Court of Appeals has broadly interpreted “delay damages claims” as claims that “seek compensation for increased costs […] whether the costs result because it takes longer to complete the project or because overtime or additional costs are expended in an effort to complete the work on time. It is of no consequence that the obstruction, whatever its cause, occurs during the term of the contract or afterwards or whether it disrupts the contractor’s anticipated manner of performance or extends his time for completion.” Corinno Civetta Const. Corp. v. City of New York, 67 N.Y.2d 297, 310, 493 N.E.2d 905 (1986).

[2] Corinno Civetta Const. Corp., 67 N.Y.2d at 310.

[3] Henick-Lane, LLC v Stellar Mgt. Group, Inc. (2025 NY Slip Op 05190)