Practice point: A clause which exculpates a contractee from liability to a contractor
for damages resulting from delays in the performance of the latter's
work is valid and enforceable and is not contrary to public policy if the clause and the contract of which it is a part satisfy the requirements for the validity of contracts generally.
Student note: However, even with such a clause, damages may be recovered for:
(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.
Case: Aurora Contrs., Inc. v. West Babylon Pub. Lib., NY Slip Op 04762 (2d Dept. 2013).
Here is the decision.
Tomorrow's issue: Summary judgment in lieu of complaint, and collateral estoppel.
