Opinion
May 30, 1991
Appeal from the Supreme Court, New York County (Irma Vidal Santaella, J.).
In this action brought by plaintiff subcontractor, J.J. Flannery, Inc., for breach of a sheet metal subcontract, Kerby, a heating ventilation and air conditioning contractor, argues that plaintiff's papers in opposition to its partial summary judgment motion failed to raise a triable issue of fact. The subcontract includes a "no damage for delay" clause, and the complaint's fourth and fifth causes of action seek damages and quantum meruit relief, respectively, as a consequence of defendant Kerby's alleged delays.
In view of the 25 month delay involved here, we find triable issues of fact exist warranting a trial, including whether the no-delay clause was intended by the parties to immunize defendant from its own alleged delay causing acts, where, as here, the aggregate delay period complained of was 25 months (Corinno Civetta Constr. Corp. v City of New York, 67 N.Y.2d 297 ).
Concur — Sullivan, J.P., Milonas, Wallach, Ross and Kassal, JJ.