KDV Alert: Court Issues Decision With Severe Implications For Delay Damage Pleading

March 21, 2019 – By Andrew Richards, Co-managing Partner of KDV’s Long Island Office and Chair of the Construction Law Practice Group The Appellate Division, First Department, just issued a decision which will have a severe impact on the pleading of delay claims in the New York State court system. The First Department affirmed a lower court decision that dismissed a complaint and the plaintiff’s proposed amended complaint alleging delay damages on the ground that the allegations are “palpably insufficient or clearly devoid of merit”, conclusory, and did not fit into one of the exceptions to the contractual “no damage for delay” clause under the seminal case of Corinno Civetta.  The First Department treated the allegations as nothing more than garden variety allegations of delay which amounted to “inept administration or poor planning”.  The lower court and the First Department issued their decisions without…

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