Citations
- 735 F. Supp. 2d 42
Full opinion text
OPINION & ORDER
DENISE COTE, District Judge:
TABLE OF CONTENTS
BACKGROUND .................................................................51
I.The DASNY-Trataros Contracts...............................................51
II. Delays on the Project.........................................................53
PROCEDURAL HISTORY........................................................54
DISCUSSION...................................................................55
I.Travelers’ Claims Against DASNY.............................................57
A. Trataros’ Impact Claim...................................................57
1. No-Damages-for-Delay Clauses Under New York Law...................57
2. The Applicability of Corinno Exceptions.................................59
3. Waiver of No-Damages-for-Delay Clause...............................66
B. Subcontractors’Pass-Through Claims............................•..........69
1. Crocetti’s Impact Claims ..............................................71
2. Jordan Panel’s Extra Work Claim......................................73
3. Remaining Subcontractors’ Impact Claims...............................76
C. Travelers’ Bond Losses Claim .............................................79
II. DASNY’s Counterclaims Against Travelers......................................80
A. DASNY’s Breach-of-Contract Counterclaim.................................80
B. DASNY’s Performance Bond Counterclaim..................................83
C. DASNY’s Payment Bond Counterclaim.....................................85
1. Payment Bonds Under New York Law..................................85
2. General Principles of Obligee Standing..................................87
3. Obligee Standing Under New York Law.................................87
4. Application..........................................................88
CONCLUSION..................................................................91
This complex litigation arises out of the construction of a 785,000 square-foot vertical campus for Baruch College (“Baruch”), part of the City University of New York (“CUNY”), between about 1998 and 2002 (the “Project”). Plaintiff Travelers Casualty & Surety Company (“Travelers”) — the surety to a prime contractor for the Project, Trataros Construction, Inc. (“Trataros”) — has brought suit against the Project’s “Owner,” the Dormitory Authority— State of New York (“DASNY”), asserting various claims arising out of Trataros’ performance of its two prime contracts. DASNY, in turn, asserts counterclaims against Travelers for breach of those prime contracts and breach of two sets of surety bonds administered by Travelers.
On February 19, 2010, both parties filed motions for summary judgment. For the following reasons, Travelers’ motion is granted in part, and DASNY’s motion is granted in its entirety.
BACKGROUND
The instant litigation has already been the subject of numerous Opinions by this Court. Familiarity with all prior proceedings is assumed, and only the facts relevant to the two pending motions are outlined herein. These facts, taken from the parties’ evidentiary submissions, are undisputed unless otherwise noted.
I. The DASNY-Trataros Contracts
As Owner of the Project, DASNY entered into some thirteen prime contracts for carrying out the substance of the Project’s construction work. Trataros was eventually awarded two of these prime contracts, known as “Contract 15” and “Contract 16” (jointly, the “Contracts”). Contracts 15 and 16 were among the last prime contracts put out to bid and awarded by DASNY on the Project.
Trataros submitted its bid for Contract 15 on or about March 19, 1998. Trataros’ bid of $50,222,000 was accepted on April 22 of that year, and Contract 15 was executed between DASNY and Trataros on or about April 27. The scope of work under Contract 15 included construction of the Project’s windows, exterior curtainwall, exterior metal siding, elevators, rough carpentry, and ceilings.
Contract 16, in turn, included the interi- or fítout/curtainwall, roofing installation, flooring installation and finishing, swimming pool, acoustical spray, and miscellaneous metal work. Trataros’ bid of $24,140,000 was accepted on August 27, 1998, and Contract 16 was executed between DASNY and Trataros on or about September 1.
Both Contracts incorporated by reference certain “General Conditions” governing the Project as a whole. Among many other things, the General Conditions contain: required representations, warranties, and guarantees by contractors; a “time-is-of-the-essence” provision; a clause reserving DASNY’s right to suspend the performance of work; a definition of “Extra Work,” and an exclusive process for determining additional compensation therefor; a dispute-resolution article; and several risk-allocation provisions, including a clause stipulating that contractors cannot seek “increased costs, charges, expenses or damages of any kind” against DASNY as a result of “any delays or hindrances from any cause whatsoever” relating to the Project (the “no-damages-for-delay clause”).
As a condition of being awarded Contracts 15 and 16, Trataros was required to obtain certain surety bonds, including both labor and materials payment bonds (the “Payment Bonds”) and performance bonds (the “Performance Bonds”). On or about April 27, 1998, Trataros obtained a Performance Bond and Payment Bond, each in the “penal sum” of $50,222,000, to guarantee its work under Contract 15. On or about September 1, 1998, Trataros obtained another Performance Bond and Payment Bond, each in the penal sum of $24,140,000, to guarantee its work under Contract 16. The terms and conditions of these two sets of bonds were drafted by DASNY as part of the Project’s standard contract documents, and the Performance and Payment Bonds for Contracts 15 and 16 are identical in all material respects.
The issuing surety for both sets of bonds was Reliance Insurance Company (“Reliance”), and both sets of bonds named Trataros as principal and DASNY as obligee. Travelers and Reliance subsequently entered into an agreement, however, granting Travelers a power of attorney to act as administrator for the Project bonds, such that Travelers then became Trataros’ surety under both the Performance and Payment Bonds.
In order to carry out its scope of work under Contracts 15 and 16, Trataros hired various subcontractors. Among its many subcontractors were LBL Sky Systems Corporation (“LBL”), Jordan Panel Systems Corp. (“Jordan Panel”), G.M. Crocetti, Inc. (“Crocetti”), and Brooklyn Welding Ironworks, Inc. (“Brooklyn Welding”) (collectively, the “Subcontractors”). In each of its subcontracts (the “Subcontracts”), Trataros included a standard “flow-down” or “conduit” provision providing that “[i]n respect of work covered by this Subcontract, and except as expressly modified herein, Subcontractor shall have all rights which contractor has under the Contract Documents, and Subcontractor shall assume all obligations, risks and responsibilities which Contractor has assumed towards Owner in the Contract Documents.” Thus, pursuant to the flow-down clause, the General Conditions and other terms of Contracts 15 and 16 also became applicable to the Subcontractors.
II. Delays on the Project
The Project, which was designed and built on a “fast-track” basis, did not proceed on schedule. Contract 15 was originally to be completed by September 1, 2000, while Contract 16 was originally to be completed by November 1, 2000. On or about August 15, 1999, the Project’s construction manager, TDX, provided Trataros with a new construction schedule including a “late finish” date of September 1, 2001 for Trataros’ work under both Contracts. Trataros agreed to complete its work within this new time frame, provided that it did not “encounter future circumstances causing delays” or “some unforeseen calamity.”
On or about April 6, 2001, DASNY executed Change Order No. GC2-064 (“Change Order GC2-64”) to formalize an extension of time for Trataros’ performance of the Contracts until the aforementioned “late finish” date. Change Order GC2-64 provided that Trataros’ time for completion of Contract 15 would be extended 365 days, while the time for Contract 16 would be extended 304 days, thereby mandating a “new contract completion date for both Contracts of September 1, 2001.” In accordance with General Conditions § 11.02 (the no-damages-for-delay clause), however, Change Order GC2-64 did not provide any additional compensation to Trataros or its subcontractors.
In about July 2001, DASNY received a temporary certificate of occupancy (“TCO”) for the above-ground floors of the Project. In late August 2001, those fourteen stories opened for the use of Baruch. On or about February 1, 2002, DASNY received a TCO for the three basement levels of the Project. As of about that date, according to the parties’ expert witnesses, Trataros’ work under Contracts 15 and 16 became “substantially complete.” At or about that time, Baruch began to occupy and use the basement levels.
On or about June 19, 2002, Travelers, Trataros, and several Trataros-affiliated individuals entered into a financing agreement (the “Financing Agreement”). Pursuant to the Financing Agreement, Trataros agreed to deposit all payments it received from any project, whether bonded by Travelers or not, into a joint checking account opened and owned by Travelers in Trataros’ name (the “Joint Account”). In turn, to the extent Trataros required additional funding in order to complete its bonded projects or to pay its subcontractors or suppliers, Travelers deposited funds into the Joint Account for Trataros’ use. Nonetheless, at some point between mid-2002 and early 2003, Trataros largely or entirely ceased its business operations.
As a result of various delays, obstacles, and deficiencies — the responsibility for which is disputed among the parties— DASNY issued dozens of Change Orders to extend the time for work and provide extra compensation to various contractors and subcontractors. Nevertheless, in many respects, the Project participants could not reach agreement regarding who should bear the loss for certain additional costs that were incurred. Numerous subcontractors and suppliers made demands under Trataros’ Payment Bonds, and at least some of those demands were not honored. Litigation ultimately ensued in both state and federal fora.
PROCEDURAL HISTORY
On August 1, 2007, Travelers commenced this action by filing a complaint (the “Complaint”) asserting, inter alia, four separately enumerated claims against DASNY. The first claim, labeled “Breach of Contract,” seeks payment of certain “contract balances and retainages” allegedly due and owing to Trataros under Contracts 15 and 16. The second claim, labeled “Impact Claims of Trataros” (the “Impact Claim”), seeks payment for “additional costs incurred by Trataros” resulting from “delays, lost productivity, inefficiencies, acceleration, cost escalation, and additional work.” The third claim, labeled “Pass Through Claims” (the “Pass-Through Claims”), seeks impact damages suffered by four of Trataros’ “subcontractors’ suppliers,” with whom Travelers asserts it has concluded liquidating agreements. The fourth, unlabeled claim (the “Bond Losses Claim”), brought on Travelers’ own behalf, seeks to recover “expenses and attorney’s fees which Travelers has incurred” in its role as Trataros’ surety “as a result of DASNY’s [ ] acts and/or omissions.”
On September 28, 2007, DASNY answered Travelers’ four claims and interposed three counterclaims (the “Counterclaims”) against Travelers in turn. The first counterclaim (the “Payment Bond Counterclaim”) asserts that Travelers failed to pay various subcontractors who made claims against Travelers under the Payment Bonds and that, as a result of ensuing state-court litigation, DASNY was compelled to pay the subcontractors instead. The second counterclaim (the “Breach-of-Contract Counterclaim”) asserts that “Trataros breached Contract No. 15 and Contract No. 16[ ] by virtue of its delayed and defective work” and that Travelers should be held liable for Trataros’ breach “[b]y virtue of Travelers’ assumption of Trataros’ obligations” under the Contracts. The third counterclaim (the “Performance Bond Counterclaim”) asserts that Travelers “wrongfully rejected” DASNY’s demand for payment under the Performance Bonds.
On or about February 19, 2010, Travelers and DASNY each filed motions for summary judgment. DASNY seeks dismissal of the second, third, and fourth claims asserted by Travelers, while Travelers seeks dismissal of all three Counterclaims. Travelers’ motion became fully submitted on April 2, and DASNY’s motion became fully submitted on April 9.
DISCUSSION
Summary judgment may not be granted unless all of the submissions taken together “show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In making this determination, the court must “construe all evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir.2010).
Once the moving party has asserted facts showing that the non-movant’s claims cannot be sustained, the opposing party must “set out specific facts showing a genuine issue for trial,” and cannot “rely merely on allegations or denials” contained in the pleadings. Fed.R.Civ.P. 56(e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). “A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment,” as “[m]ere eonclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (citation omitted). Only disputes over material facts — “facts that might affect the outcome of the suit under the governing law” — will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (stating that the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts”).
Almost all of the claims and Counterclaims challenged in these two motions are essentially breach-of-contract claims whose adjudication depends, in part, on contract interpretation. Under New York law, “[i]t is well settled that a contract is to be construed in accordance with the parties’ intent, which is generally discerned from the four corners of the document itself.” MHR Capital Partners LP v. Presstek, Inc., 12 N.Y.3d 640, 645, 884 N.Y.S.2d 211, 912 N.E.2d 43 (2009) (“Presstek ”). “[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms.” Id. (citation omitted). The parties do not appear to dispute that each written contract at issue in this litigation contains the full and complete terms of the parties’ respective agreements.
“[A] motion for summary judgment may be granted in a contract dispute only when the contractual language on which the moving party’s ease rests is found to be wholly unambiguous and to convey a definite meaning.” Topps Co., Inc. v. Cadbury Stani S.A.I.C., 526 F.3d 63, 68 (2d Cir.2008). Thus, “[t]he initial question for the court on a motion for summary judgment with respect to a contract claim is whether the contract is unambiguous with respect to the question disputed by the parties.” Cont’l Ins. Co. v. Atl. Cas. Ins. Co., 603 F.3d 169, 180 (2d Cir.2010) (citation omitted). “Whether the contract is unambiguous is a question of law for the court.” Id. (citation omitted).
“In interpreting a contract under New York law, words and phrases should be given their plain meaning, and the contract should be construed so as to give full meaning and effect to all of its provisions.” LaSalle Bank Nat’l Ass’n v. Nomura Asset Capital Corp., 424 F.3d 195, 206 (2d Cir.2005) (citation omitted). “[A] court should not adopt an interpretation which will operate to leave a provision of a contract without force and effect.” Amaranth LLC v. J.P. Morgan Chase & Co., 71 A.D.3d 40, 888 N.Y.S.2d 489, 493 (1st Dep’t 2009) (citation omitted). “Courts may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing.” Riverside S. Planning Corp. v. CRP/Extell Riverside, L.P., 13 N.Y.3d 398, 404, 892 N.Y.S.2d 303, 920 N.E.2d 359 (2009) (citation omitted).
The foregoing principles reflect the “general rule [that] ‘parties should be free to chart their own contractual course’ unless public policy is offended.” FCI Grp., Inc. v. City of N.Y., 54 A.D.3d 171, 862 N.Y.S.2d 352, 356 (1st Dep’t 2008) (quoting Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 N.Y.3d 624, 629, 825 N.Y.S.2d 692, 859 N.E.2d 498 (2006)). “If the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity.” Law Debenture Trust Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458, 468 (2d Cir.2010) (citation omitted).
I. Travelers’ Claims Against DASNY
A. Trataros’ Impact Claim
Travelers’ second claim, the Impact Claim, is “a claim against DASNY for impact damages on behalf of Travelers’ bonded principal, Trataros.” The Impact Claim seeks payment for “additional costs incurred by Trataros” while completing Contracts 15 and 16 and resulting from “delays, lost productivity, inefficiencies, acceleration, cost escalation, and additional work.” These “additional costs” are alleged in the Complaint to have been caused by, inter alia, “numerous differing site conditions”; “factors beyond the control of Trataros”; “DASNY’s failure to take appropriate action to prevent unreasonable impacts to the Project”; “DAS-NY’s failure to provide adequate coordination of the Project”; “DASNY’s failure to provide non-defective plans, drawings and specifications”; “DASNY’s breach of the implied covenant of good faith and fair dealing implicit in [the] Contracts”; “DAS-NY’s gross negligence in administering the Project”; and DASNY’s “active interference with” and/or “obstruction of Trataros’ ability to perform [the] Contracts.” Travelers alleges that the foregoing impacts “were uncontemplated by Trataros at the time it bid on the Project” and “led to unreasonable and unforeseeable delays.”
1. No-Damages-for-Delay Clauses Under New York Law
DASNY asserts that the Impact Claim is barred by the no-damages-for-delay clause included in the General Conditions, which in turn were incorporated by reference into Contracts 15 and 16. Section 11.02 of the General Conditions, entitled “Claims for Delay,” provides:
No claims for increased costs, charges, expenses or damages of any kind shall be made by the Contractor against the Owner for any delays or hindrances from any cause whatsoever; provided that the Owner, in the Owner’s discretion, may compensate the Contractor for any said delays by extending the time for completion of the Work as specified in the Contract.
(Emphasis added).
The no-damages-for-delay clause is a type of “exculpatory clause,” and as such, it is “strictly construed against the party” that relies on it. Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946 F.2d 1003, 1008 (2d Cir.1991). Nonetheless, such a clause “is val id 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.’” McNamee Constr. Corp. v. City of New Rochelle, 60 A.D.3d 918, 875 N.Y.S.2d 265, 266 (2d Dep’t 2009) (“McNamee ”) (quoting Corinno Civetta Constr. Corp. v. City of N.Y., 67 N.Y.2d 297, 309, 502 N.Y.S.2d 681, 493 N.E.2d 905 (1986) (“Corinno ”)); accord U.S. ex rel. Evergreen Pipeline Constr. Co., Inc. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 167 (2d Cir.1996) (“Evergreen ”). The parties’ inclusion of a no-damages-for-delay clause, which is “not uncommon in construction contracts,” evidences the contracting parties’ “ ‘unmistakable intent’ that, as between th[o]se parties, the contractor rather than the contractee is to absorb damages occasioned by contracteecaused delay.” Kalisch-Jarcho, Inc. v. City of N.Y., 58 N.Y.2d 377, 384, 461 N.Y.S.2d 746, 448 N.E.2d 413 (1983) (“Kalisch-Jarcho ”).
The rule that no-damages-for-delay clauses are enforceable is “not without its exceptions, however, and even exculpatory language which purports to preclude damages for all delays resulting from any cause whatsoever are not read literally.” Corinno, 67 N.Y.2d at 309, 502 N.Y.S.2d 681, 493 N.E.2d 905; see also Kalisch-Jarcho, 58 N.Y.2d at 384, 461 N.Y.S.2d 746, 448 N.E.2d 413. The New York Court of Appeals has enumerated four exceptions to the general rule that no-damages-for-delay clauses are to be enforced:
Generally, 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.
Corinno, 67 N.Y.2d at 309, 502 N.Y.S.2d 681, 493 N.E.2d 905; see also Commercial Elec. Contractors, Inc. v. Pavarini Constr. Co., Inc., 856 N.Y.S.2d 46, 47 (1st Dep’t 2008) (“Pavarini ”) (paraphrasing the Corinno standard).
The defendant bears the “prima facie burden of establishing that the damages sought by the plaintiff are barred by the no-damage-for-delay exculpatory clause of the parties’ contract.” Marie Mech, Inc. v. Dormitory Auth., 62 A.D.3d 965, 879 N.Y.S.2d 583, 583 (2d Dep’t 2009) (“Maric”). Part of the defendant’s required showing is “demonstrating prima facie that none of the exceptions to the ‘damages for delay’ clause are present.” Blue Water Envtl., Inc. v. Inc. Vill. of Bayville, 44 A.D.3d 807, 843 N.Y.S.2d 681, 684 (2d Dep’t 2007) (“Blue Water ”). Once that prima facie burden has been met, the burden shifts to the plaintiff to “raise a triable issue of fact as the applicability of any of the [Corinno ] exceptions to the contractual bar.” Maric, 879 N.Y.S.2d at 583; see also Blue Water, 843 N.Y.S.2d at 684.
In proving that one of the Corinno exceptions applies, the plaintiff bears a “heavy burden.” Dart Mech. Corp. v. City of N.Y., 68 A.D.3d 664, 891 N.Y.S.2d 76, 77 (1st Dep’t 2009) (“Dart”); accord Evergreen, 95 F.3d at 167. For example, a plaintiff may not rely on evidence that a defendant’s conduct was merely negligent or unreasonable. The exculpatory clause is “specifically designed to protect the contractee from claims for delay damages resulting from its failure of performance in ordinary, garden variety ways,” and thus, “a broad no-damage-for-delay clause would be meaningless unless it encompassed within its scope a range of unreasonable as well as reasonable delays because any other application would permit the exception to swallow up the general rule.” Corinno, 67 N.Y.2d at 312-13, 502 N.Y.S.2d 681, 493 N.E.2d 905; see also Evergreen, 95 F.3d at 167.
General Conditions § 11.02 is, like most no-damages-for-delay clauses, a broadly worded provision. It prevents recovery for “damages of any kind ... for any delays or hindrances from any cause whatsoever.” Similarly worded clauses have been held to bar many kinds of damages, no matter how labeled or characterized by a plaintiff. In Corinno, the New York Court of Appeals rejected the plaintiffs’ attempt to distinguish “[claims] for increased costs in labor, materials, and equipment occurring prior to the expiration of the contract period” from “claims for damages resulting from a delay of the project beyond the scheduled completion date,” finding that both were barred by the no-damages-for-delay clause. Corinno, 67 N.Y.2d at 313, 502 N.Y.S.2d 681, 493 N.E.2d 905. The Court of Appeals observed that “[a]ll delay damage claims seek compensation for increased costs,” and concluded that, however the plaintiffs’ claims were characterized, “[t]he claims are claims for delay and the exculpatory clause was drafted and included in the contract to bar them.” Id. at 313-14, 502 N.Y.S.2d 681, 493 N.E.2d 905.
2. The Applicability of Corinno Exceptions
In seeking to avoid the no-damages-for-delay clause, Travelers relies principally upon the “uncontemplated delay” exception. Travelers also contends, in passing, that the “gross negligence” exception applies as well. Each of these two exeeptions is discussed below.
a. Uncontemplated Delay
The second Corinno exception applies where “ ‘the delays or their causes were not within the contemplation of the parties at the time they entered into the contract.’ ” McNamee, 875 N.Y.S.2d at 267 (quoting Corinno, 67 N.Y.2d at 309-10, 502 N.Y.S.2d 681, 493 N.E.2d 905). The exception is “based on the concept of mutual assent.” Corinno, 67 N.Y.2d at 310, 502 N.Y.S.2d 681, 493 N.E.2d 905. “It can hardly be presumed ... that the contractor bargained away his right to bring a claim for damages resulting from delays which the parties did not contemplate at the time” of entering into the contract. Id. Therefore, “even broadly worded exculpatory clauses ... are generally held to encompass only those delays which are reasonably foreseeable, [which] arise from the contractor’s work during performance, or which are mentioned in the contract.” Id.) see also Blue Water, 843 N.Y.S.2d at 684 (delays must be “wholly unanticipated” to be actionable (citation omitted)); N. Star Contracting Corp. v. City of N.Y., 203 A.D.2d 214, 611 N.Y.S.2d 11, 12 (1st Dep’t 1994) (same).
New York courts apply several general principles in determining whether a delay was “uncontemplated.” These principles were summarized recently in Premier-New York, Inc. v. Travelers Prop. Cas. Co., a delay-damages case also arising out of this Project. Index No. 603043-2003, 20 Misc.3d 1115(A), 2008 WL 2676800 (Sup.Ct. N.Y. County July 8, 2008) {“Premier”). In Premier, Justice Fried explained, first, that “[i]t is not necessary that the contract specifically contemplate the exact occurrences giving rise to the delay; all that is required is that the class of occurrence have been contemplated.” Id. at *13; see also Blau Mech. Corp. v. City of N.Y., 158 A.D.2d 373, 551 N.Y.S.2d 228, 230 (1st Dep’t 1990) (“Blau”)) Buckley & Co. v. City of N.Y., 121 A.D.2d 933, 505 N.Y.S.2d 140, 142 (1st Dep’t 1986) {“Buckley”). Second, where a contract “discusses a potential cause (or class of causes) of delay, subsequent delays arising from that cause are considered to have been contemplated by the parties.” Premier, 2008 WL 2676800, at *13; see Blau, 551 N.Y.S.2d at 229-30; Visconti Corp. v. LaBarge Bros. Co., Inc., 272 A.D.2d 948, 707 N.Y.S.2d 566, 567 (4th Dep’t 2000) {“Visconti ”). Third, “ordinary, garden variety” poor performance by the contractee is within the contemplation of the parties, Corinno, 67 N.Y.2d at 313, 502 N.Y.S.2d 681, 493 N.E.2d 905, and therefore conduct by a contractee “amounting] to nothing more than inept administration or poor planning” does not fall within the Corinno exceptions. Pavarini, 856 N.Y.S.2d at 47. Fourth, delays resulting from failures of coordination are within the contemplation of the parties in cases of complex, multi-contractor litigation. See Premier, 2008 WL 2676800, at *12; Gottlieb Contracting, Inc. v. City of N.Y., 86 A.D.2d 588, 446 N.Y.S.2d 311, 312 (1st Dep’t 1982).
DASNY has shown that the damages Travelers seeks in the Impact Claim are barred by the no-damages-for-delay clause in the General Conditions, and that none of the Corinno exceptions applies. In attempting to create a triable issue of fact, Travelers relies on the following evidence and arguments. First, Travelers obsexves — relying on the parties’ expert consensus that Trataros’ work under the Contracts was substantially completed by about February 1, 2002, when a TCO was issued for the Project’s three basement levels — that “Contracts] 15 and 16 were respectively extended 17 months and 15 months longer than anticipated.” Second, Travelers contends that KPF committed numerous “design errors and omissions” throughout the Project, resulting in “prodigious amounts of requests for information (‘RFIs’),” and that this “professional negligence” was not contemplated by Trataros at the time of bidding. To support this assertion regarding KPF’s negligence, Travelers relies heavily on various accusations made by DASNY in a May 2002 demand letter claiming damages against KPF for the latter’s allegedly faulty design work, a letter which Travelers characterizes as constituting an admission by DASNY that KPF was negligent. Third, Travelers asserts that TDX was also negligent because its “CPM schedules used to manage and coordinate the work of the prime contracts was [sic] inadequate for the size and scope of this project, riddled with logical flaws, and manipulated to maintain artificial deadlines imposed by the owner.” Finally, Travelers apparently relies on the conclusions of Buric and another expert, Cashin Spinelli & Ferretti, LLC (“CSF”), that the delays experienced by Trataros could not have been contemplated or foreseen at the time of contracting.
Travelers has failed to demonstrate a triable issue of fact. Several considerations compel this result. First, Travelers has failed, with perhaps a single exception discussed below, to describe with any precision what its Impact Claim addresses, much less to present admissible evidence demonstrating who was responsible for any particular category of Impact Claim damages; how that malfeasance damaged Trataros; and how those damages were uncontemplated by the parties at the time of entering into Contracts 15 and 16. This last point is fatal since the Contracts explicitly contemplated many of the types of delay for which Trataros and its Subcontractors appear to be seeking damages. Contracts 15 and 16 allocated risk for, and thereby contemplated, many potential sources of delay, including: delays resulting from the acts or omissions of other prime contractors and their subcontractors; delays resulting from the Owner’s reasonable “suspension, interruption or delay” of a contractor’s performance; delays resulting from a contractor’s own manpower and supply issues; delays resulting from limited hoist or elevator availability; and delays resulting from early occupancy of the Project by the Owner. Moreover, the bidding documents for Contracts 15 and 16 warned Trataros and other prospective bidders to “examine the Contract Documents carefully” and to “inspect[ ] the Site” prior to bidding. Thus, insofar as Travelers’ “Impact Claim” seeks to recover additional costs relating to the foregoing causes of delay — bearing in mind that Travelers’ asserted bases for seeking delay damages include such vague categories as “numerous differing site conditions” and “factors beyond the control of Trataros” — those claims were contemplated by the contract and therefore cannot be recovered under the “uncontemplated delay” exception.
Likewise, to the extent that the Impact Claim is actually a request for payment for extra work masquerading as a delay-damages claim, that claim would be foreclosed by the Contracts’ requirement that such requests be made through a specific process set forth in the General Conditions. First, § 8.01(A) of the General Conditions provides:
Without invalidating the Contract, the Owner may order Extra Work or make changes by altering, adding to, or deducting from the Work, the Contract consideration being adjusted accordingly. No claims for Extra Work shall be allowed unless such Extra Work is ordered in writing by the Owner. No changes in the Work shall be made unless such Work is ordered in writing by the Owner or Owners [sic] Representative. If the time for completion is affected by this change the revised time for completion shall be included in the change order. The Owner may order the Contractor to perform the Extra Work and proceed under the Dispute Article [i.e., Article 11].
(Emphasis added). In turn, if a contractor wishes to make an extra-work claim, the contractor must follow the process specified in General Conditions § 11.01(A). That Subsection provides that within “fifteen (15) working days after being ordered to perform the Work claimed by the Contractor to be Extra Work,” the contractor must give written notice, including a cost estimate and a formal request for a determination by the Owner as to whether the claim involves extra work. Section 11.01(A) further mandates that “[t]he Contractor’s failure to comply with any or all parts of [Article 11] shall be deemed to be: (1) a conclusive and binding determination ... that said order, Work, action or omission does not involve Extra Work” and “(2) a waiver by the Contractor of all claims for additional compensation or damages as a result of said order, Work, action or omission.”
Second, even where the Contracts did not explicitly discuss the delay-causing “factors” upon which Travelers may be relying, the sources of delay alluded to by Travelers in its briefing were nevertheless clearly within the contemplation of the parties at the time of contracting. Claims for damages based on “ordinary, garden variety” delays arising from an owner’s negligent supervision, a fellow contractor’s defective or delayed performance, an architect’s slow review of shop drawings, and the like, are all routinely barred by a no-damages-for-delay clause. Corinno, 67 N.Y.2d at 313, 502 N.Y.S.2d 681, 493 N.E.2d 905. Thus, the delays for which Trataros may be seeking compensation, insofar as they are articulated, appear to be unremarkable, foreseeable risks of construction.
Third, any consideration of what was reasonably within the contemplation of the parties at the time of contracting must take into account the commercial context. Trataros was the last of around a dozen prime contractors to join a complex construction project in the heart of a busy commercial neighborhood in this City, and it did so with full knowledge of the number of other participants involved. Having been supplied before bidding with all of the Contract Documents — documents which Trataros was required to review — Trataros was also well aware that the Project was architecturally “ambitious” (as Travelers alleged in the Complaint). The fact that design modifications, delays, or other difficulties could arise on such a project would not surprise a prudent bidder. Cf., e.g., McNamee, 875 N.Y.S.2d at 267 (“experienced excavator! ] must have reasonably foreseen the possibility that a utility company would be unable or unwilling to move its underground lines”). By nonetheless submitting bids on those Contracts, Trataros committed itself to acquiring two contractual bundles of rights, duties, and risks that, by Trataros’ own valuation, were worth approximately $50 million and $24 million respectively. As a commercially sophisticated actor with extensive experience in the construction industry, Trataros could be expected to review the risk allocation provisions contained in the Contracts (which, as both parties observe, were not unlike those contained in other DASNY contracts) and to have contemplated those provisions carefully in determining the amounts of each bid. As such, there is no reason not to hold Trataros to its bargain. See Kalisch-Jarcho, 58 NY.2d at 384, 461 N.Y.S.2d 746, 448 N.E.2d 413 (noting that no-damages-for-delay clauses are enforceable, “especially when entered into at arm’s length by sophisticated contracting parties”).
Indeed, New York courts treat with skepticism claims by sophisticated commercial actors that the terms for which they bargained should not be enforced, finding that such an outcome would undermine freedom of contract. Particularly where complicated, high-dollar value contracts are at issue, courts are skeptical of claims that certain risks were “uncontemplated” at the time of contracting. As Justice Seheinkman observed with respect to another ambitious Manhattan building project:
The Court is not unmindful that Plaintiff undertook a $61.5 million Contract. To the extent that the problems complained of under these causes of action were made Plaintiffs problems by the terms of the Contract, Plaintiff agreed to assume them in exchange for the contract price. To the extent that Plaintiff assumed the problems but is now complaining that the compensation is not sufficient, Plaintiff is bound by the provisions it agreed to.
Century-Maxim Constr. Corp. v. One Bryant Park, LLC, Index No. 24683-2008, 23 Misc.3d 1120(A), 2009 WL 1218895, at *21 (Sup.Ct. Westchester County Apr. 7, 2009).
Finally, Travelers cannot achieve a triable claim based solely on its experts’ conclusions that the delays were “unreasonable” or could not have been contemplated by Trataros at the time of contracting. “An expert’s report is not a talisman against summary judgment.” In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 512 (2d Cir.2010) (citation omitted). “Although the [expert] reports must be construed in the non-moving party’s favor, if the admissible evidence is insufficient to permit a rational juror to find in favor of the plaintiff, the court remains free to ... grant summary judgment for defendant.” Id. Having failed to tender other admissible evidence to raise a question of fact that the delays were uncontemplated by the parties, the opinions expressed in the CSF and Buric expert reports that the “[t]he numerous delays experienced by Trataros could not have been foreseen when Trataros entered into its Contract(s)” and that “the impacts were of a nature and duration that no contractor could have reasonably foreseen or discovered at the time the contracts were signed” are insufficient to raise any question of fact. Accordingly, Travelers has failed to present evidence to create a triable issue of fact as to the “uncontemplated delay” exception.
b. Gross Negligence
Travelers also appears to contend that the no-damages-for-delay clause may not be enforced because Trataros’ damages were “caused by [DASNY’s] bad faith or its willful, malicious, or grossly negligent conduct.” Corinno, 67 N.Y.2d at 309, 502 N.Y.S.2d 681, 493 N.E.2d 905. “More pointedly, an exculpatory clause is unenforceable when, in contravention of acceptable notions of morality, the misconduct for which it would grant immunity smacks of intentional wrongdoing.” Kalisch-Jarcho, 58 N.Y.2d at 385, 461 N.Y.S.2d 746, 448 N.E.2d 413; see also A.H.A. Gen. Constr., Inc. v. N.Y. City Hous. Auth., 92 N.Y.2d 20, 31, 677 N.Y.S.2d 9, 699 N.E.2d 368 (1998) (“A.H.A. ”). Conduct that “betokens a reckless indifference to the rights of others” constitutes “gross negligence” for the purposes of this exception. Kalisch-Jarcho, 58 N.Y.2d at 385, 461 N.Y.S.2d 746, 448 N.E.2d 413.
Travelers has failed to adduce evidence raising a triable issue of fact as to whether DASNY was grossly negligent. Travelers has tendered evidence indicative of, at worst, ordinary negligence. Delays arising out of “no more than ordinary negligence at most” are barred by a no-damages-for-delay clause. Obremski v. Image Bank, Inc., 30 A.D.3d 1141, 816 N.Y.S.2d 448, 450 (1st Dep’t 2006); see also Teddy Giannopulos Gen. Contractors, Inc. v. N.Y. City Hous. Auth., 260 A.D.2d 253, 688 N.Y.S.2d 536, 537 (1st Dep’t 1999).
3. Waiver of No-Damages-for-Delay Clause
Travelers asserts that, even if none of the Corinno exceptions applies, DASNY has nonetheless waived its right to enforce the no-damages-for-delay clause. “Contractual rights may be waived if they are knowingly, voluntarily and intentionally abandoned.” Fundamental Portfolio Advisors, Inc. v. Tocqueville Asset Mgmt., L.P., 7 N.Y.3d 96, 104 (2006) (“Portfolio Advisors ”). “[W]aiver of a contractual right ‘may be established by affirmative conduct or by failure to act so as to evince an intent not to claim a purported advantage ... and must be based on a clear manifestation of intent to relinquish a contractual protection.’ ” Natale v. Ernst, 63 A.D.3d 1406, 881 N.Y.S.2d 232, 233 (3d Dep’t 2009) (quoting Portfolio Advisors, 7 N.Y.3d at 104, 817 N.Y.S.2d 606, 850 N.E.2d 653); accord Capitol Records, Inc. v. Naxos of Am., Inc., 372 F.3d 471, 482 (2d Cir.2004). “A waiver is not created by negligence, oversight, or thoughtlessness, and cannot be inferred from mere silence. Rather, there must be proof that there was a voluntary and intentional relinquishment of a known and otherwise enforceable right.” Golfo v. Kycia Assocs., Inc., 45 A.D.3d 531, 845 N.Y.S.2d 122, 124 (2d Dep’t 2007) (citation omitted). Moreover, for the parties’ conduct to amount to a waiver, “it ‘must not otherwise be compatible with the agreement as written,’” and “‘the conduct of the parties must evidence an indisputable mutual departure from the written agreement.’” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 783 (2d Cir.2003) (quoting Rose v. Spa Realty Assocs., 42 N.Y.2d 338, 344, 346, 397 N.Y.S.2d 922, 366 N.E.2d 1279 (1977)). “[T]he existence of an intent to waive a contractual right generally presents a question of fact.” Natale, 881 N.Y.S.2d at 233; accord Portfolio Advisors, 7 N.Y.3d at 104, 817 N.Y.S.2d 606, 850 N.E.2d 653. Because the effect of waiver is to “relinquish a contractual protection,” however, “waiver should not be lightly presumed.” Portfolio Advisors, 7 N.Y.3d at 104, 817 N.Y.S.2d 606, 850 N.E.2d 653 (citation omitted).
Travelers’ waiver argument depends upon the following assertions. First, Travelers argues that “DASNY’s conduct in executing and paying a number of change orders in payment of delay and impact costs served to waive the exculpatory clauses.” Travelers contends that DASNY’s payments to Trataros included “change orders [constituting] explicit settlements of delay claims asserted by a number of Trataros’ subcontractors” as well as “change orders compensating Trataros for extra costs incurred as a result of Project delays.” Travelers asserts that DASNY executed and paid at least twelve change orders constituting settlements of delay claims asserted by Trataros’ subcontractors. Travelers observes that each of the change orders was accompanied by a memorandum from TDX indicating, inter alia, that “[appropriate consideration will be made at a future date, in accordance with contractual obligations for any time impact to the contract and costs associated with same.” Travelers also points to several “supplementary worksheets” prepared by DASNY as part of its change-order evaluation process indicating that DASNY “assumed responsibility” for a given percentage of the delay experienced by each subcontractor. As a result, Travelers contends that “compensation for delay was not only the primary motive for the issuing of the change orders, but an ongoing basis for potential reimbursement.” Travelers also observes that DASNY executed at least six change orders to settle delay claims made by other prime contractors.
Travelers’ waiver argument cannot succeed. Travelers overlooks that all but one of the twelve change orders upon which it relies include express reservations by DASNY of its contractual rights. In particular, these eleven change orders provide, in pertinent part:
This change order is issued pursuant to Article 11 of the Contract. Neither this Change Order nor the extension of time for performance granted hereunder constitutes an admission by DASNY that it is responsible for any delays or hindrances to work under the Contract. No claims for increased costs, changes, expenses, or damages of any kind shall be made by the Contractor against DAS-NY for any delays or hindrances from any cause whatsoever, including but not limited to any delays or hindrances contemplated by this Change Order. DAS-NY reserves its rights to rely on and enforce the terms of the contract and New York law in connection with this Change Order. DASNY further reserves its right to independently assess and allocate responsibility for delay to the Contract.
(Emphasis added). (Article 11, entitled “Disputes,” is the section of the General Conditions which, inter alia, governs claims for extra work and which contains the no-damages-for-delay clause.) Moreover, even the accompanying TDX memoranda state that “[a]ny time impact to the contract or any costs associated with an extension of time to the contract is not acknowledged and has not been determined at this time,” and that “[appropriate consideration will be made at a future date, in accordance with contractual obligations for any time impact to the contract and costs associated with same” (emphasis added). The change orders’ express invocation and reservation of DASNY’s Article 11 rights shows that DASNY’s conduct was not “ ‘a clear manifestation of intent to relinquish a contractual protection,’ ” Natale, 881 N.Y.S.2d at 283 (quoting Portfolio Advisors, 7 N.Y.3d at 104, 817 N.Y.S.2d 606, 850 N.E.2d 653). A party does not make “ma[k]e the conscious choice” to waive its rights by explicitly reserving its power to enforce them. Mooney v. City of N.Y., 219 F.3d 123, 131 (2d Cir.2000) (citation omitted); see also, e.g., 225 Fifth Ave. Retail, L.L.C. v. 225 5th L.L.C., Index No. 601659-2007, 24 Misc.3d 1224(A), 2009 WL 2208336, at *10 (Snp.Ct. N.Y. County July 7, 2009) (reservation-of-rights statement negated any possible inference of waiver based on parties’ course of conduct).
Second, Trataros itself waived whatever rights it has to seek delay damages from DASNY with respect to the disputes for which DASNY has already executed a change order settlement. By signing each change order and accepting payment, Trataros explicitly agreed to “release and forever discharge [DASNY] from any and all actions, causes of action, claims and demands whatsoever ... in any way arising out of this change.” Cf. Nova, 540 F.Supp.2d at 481 (contractor waived its right to seek additional damages from DASNY by virtue of the “clear and unambiguous” printed release contained in prior change orders executed by DASNY and accepted by the contractor); Northgate Elec. Corp. v. Barr & Barr, Inc., 61 A.D.3d 467, 877 N.Y.S.2d 36, 37 (1st Dep’t 2009) (plaintiffs delay-damage claim “barred by the release clause” contained in “global change order”). Thus, these change orders not only reserved DASNY’s right to rely on the no-damages-for-delay clause but also constitute a waiver of Trataros’ right to seek damages arising from the conditions addressed in the change order.
The worksheets prepared by DASNY also do not raise a triable question of waiver. Travelers relies on a certain line entry in each worksheet which reads, “DASNY assumed responsibility,” followed by a particular percentage value. For example, on Change Order GC2-201, which settled a claim made by DAG Floors, Inc., the worksheet indicates that “DASNY [a]ssumed [responsibility” for 66% of the delay. Nonetheless, DASNY’s recognition, as a factual matter, that it played a role in causing delay is not equivalent to an admission of a legal obligation to compensate Trataros for those delays. Indeed, the very purpose of a no-damages-for-delay clause is to bar damages even where the factual cause of delay is, undisputedly, the owner. See, e.g., Evergreen, 95 F.3d at 167 (“Lest the exceptions swallow the rule, delay clauses proscribe damages for a broad range of both reasonable and unreasonable delays.”). DASNY’s internal worksheets simply do not indicate an intent on the part of Travelers to forgo its contractual rights, and the language of the change orders themselves shows the opposite.
The cases upon which Travelers relies do not compel a different result. Travelers relies heavily on Plato General Construction Corp./EMCO Tech Construction Corp., JV. LLC v. Dormitory Authority of the State of New York (“Plato ”), a recent case in which the Brooklyn Supreme Court found that a triable question of fact existed regarding whether DASNY waived a no-damages-for-delay clause identical in its terms to the one at issue in this litigation. Plato, Index No. 9446-2005, 21 Misc.3d 1138(A), 2008 WL 5073190, at *11 (Sup.Ct. Kings County Dec. 2, 2008). Plato is at odds with the precedent cited above and is neither binding nor persuasive in its analysis. It will not be followed.
Travelers’ claim is also not salvaged by its reliance on Eldor Contracting Corp. v. County of Nassau, 6 A.D.3d 654, 775 N.Y.S.2d 556 (2d Dep’t 2004) (“Eldor ”). In Eldor, the Appellate Division expressed its conclusion that “[t]he plaintiff adduced sufficient evidence from which a jury could reasonably conclude that the County waived th[e] [no-damages-for-delay] clause.” Id. at 557. The Eldor court did not, however, discuss the evidence upon which it relied in making that determination. The bare holding of another court that a no-damages-for-delay clause might have been waived does not necessarily compel the same result on different facts. As such, Travelers’ Impact Claim against DASNY must be dismissed.
B. Subcontractors’ Pass-Through Claims
DASNY also seeks dismissal of the third count of the Complaint, the Pass-Through Claims, which Travelers characterizes as claims for “impact damages against DAS-NY on behalf of Trataros’ subcontractors.” Travelers identifies these subcontractors as LBL, Jordan Panel, Crocetti, and Brooklyn Welding. Travelers asserts that it has admitted contingent liability to the Subcontractors by concluding separate liquidating agreements with LBL, Jordan Panel, and Brooklyn Welding and by incorporating a liquidating agreement into Crocetti’s subcontract itself.
The general rule under New York law is that even where an owner causes delay that injures a subcontractor, “[subcontractors, lacking privity of contract, are precluded from bringing suit against the owners directly.” Bovis Lend Lease LMB Inc. v. GCT Venture, Inc., 285 A.D.2d 68, 728 N.Y.S.2d 25, 27 (1st Dep’t 2001) (“Bovis ”). Furthermore, “absent a contractual commitment to the contrary, a prime contractor is not responsible for delays that its subcontractors may incur unless those delays are caused by some agency or circumstance under the prime contractor’s direction or control.” Triangle Sheet Metal Works, Inc. v. James H. Merritt & Co., 79 N.Y.2d 801, 802, 580 N.Y.S.2d 171, 588 N.E.2d 69 (1991) (“Triangle ”); accord Thalle Constr. Co., Inc. v. Whiting-Turner Contracting Co., Inc., 39 F.3d 412, 418 (2d Cir.1994). Not only may the subcontractor not sue the general contractor directly, but the general contractor typically may not sue the owner on the subcontractor’s behalf, because “[g]eneral contractors on a construction project which have sustained no injury may not bring suit on behalf of a subcontractor for additional costs caused by the owner’s delays.” Bovis, 728 N.Y.S.2d at 27; see also Barry, Bette & Led Duke Inc. v. State, 240 A.D.2d 54, 669 N.Y.S.2d 741, 743 (3d Dep’t 1998) (“Barry ”). Taken together, these principles would seem to leave a subcontractor who sustains damage from purely owner-caused delay without any legal recourse.
New York law has, however, created a safety valve in the form of a “liquidating agreement,” which is a contractual device specifically designed to overcome the aforementioned “legal impediments” to an injured party’s recovery. Bovis, 728 N.Y.S.2d at 27. Liquidating agreements are written agreements by which an intermediary (for example, a general contractor) admits liability to an injured contractual counterparty (for example, a subcontractor) and then agrees to pursue a claim for damages on behalf of that injured counterparty against a different, responsible party with whom the intermediary is also in privity (for example, an owner). “The courts of New York and other jurisdictions recognize liquidating agreements as a valid mechanism for bridging the privity gap between owners and subcontractors who sustain damages as the result of the others’ actions.” N. Moore St. Developers, LLC v. Meltzer/Mandl Architects, P.C., 23 A.D.3d 27, 799 N.Y.S.2d 485, 488 (1st Dep’t 2005) (“N. Moore St. ”) (footnote omitted).
To be valid, liquidating agreements must meet certain requirements. “Liquidating agreements [under New York law] have three basic elements: (1) the imposition of liability upon the general contractor for the subcontractor’s increased costs, thereby providing the general contractor with a basis for legal action against the owner; (2) a liquidation of liability in the amount of the general contractor’s recovery against the owner; and, (3) a provision that provides for the ‘pass-through’ of that recovery to the subcontractor.” Bovis, 728 N.Y.S.2d at 27; see also N. Moore St., 799 N.Y.S.2d at 489; Barry, 669 N.Y.S.2d at 743. A liquidating agreement must “satisf[y] all three elements,” N. Moore St., 799 N.Y.S.2d at 489, and must represent “ ‘an actual contractual commitment’ ” by the parties, although this commitment “ ‘need not take any particular form.’ ” Helena Assocs., 2008 WL 2117621, at *9 (quoting Barry, 669 N.Y.S.2d at 743). Liquidating agreements “may be memorialized in the subcontract or in a separate written agreement and may be assembled from several documents executed over a period of years.” N. Moore St., 799 N.Y.S.2d at 490 (citation omitted). Nevertheless, “only an express — as opposed to implied' — contractual undertaking to pass through a claim recovery gives rise to a liquidating agreement.” Id. “Absent a showing of actual contractual liability [running from the prime contractor to the subcontractor], there can be no liquidating agreement.” Barry, 669 N.Y.S.2d at 744; see also H. Sand & Co., Inc. v. Airtemp Corp., 934 F.2d 450, 456 (2d Cir.1991) (noting in this context that “a party may not sue another for its liability to a third party when that liability is merely speculative”).
1. Crocetti’s Impact Claims
Carolina, as assignee of the legal claims of Crocetti, seeks impact damages against DASNY totaling nearly half a million dollars. DASNY asserts that Travelers may not bring claims on behalf of Crocetti because no valid liquidating agreement exists between Trataros and Crocetti. Travelers opposes, arguing that all three required elements of a liquidating agreement are present in the Trataros-Crocetti Subcontract. Carolina has also made separate submissions opposing DASNYs motion for summary judgment.
In arguing that a liquidating agreement exists between Trataros and Crocetti, Travelers and Carolina both rely on three different passages contained in the Trataros-Crocetti Subcontract. None of these provisions constitutes an express admission of liability by Trataros to Crocetti. First, Paragraph 6(d) provides:
Should the Subcontractor’s performance of this Subcontract be delayed, impacted or disrupted by any acts of the Contractor [Trataros], other subcontractors, or the Contractor’s suppliers, or delayed, impacted or disrupted by any acts or causes which would entitle Contractor to an extension of time under the Contract Documents, the Subcontractor shall receive an equitable extension of time for the performance of this Subcontract, but shall not be entitled to any increase in the Subcontract Price or to damages or additional compensation as a consequence of such delays[,] impacts, disruptions, or acceleration resulting therefrom unless the Owner is liable and pays Contractor for such delays, impacts, disruptions, or acceleration. Contractor will pay the Subcontractor the amount allowed and paid by the Oumer for the Subcontractor’s delay, impact, disruption or acceleration. Within five (5) days after the commencement of any delay, impact or disruption, or acceleration caused by Contractor, other subcontractors, or the Contractor’s suppliers, the Subcontractor shall notify Contractor in writing stating full details of the cause of the alleged delay, impact, disruption or disruptions or acceleration for which the Owner [sic] is responsible in sufficient time so that its claim may be timely processed against the Owner [sic].
(Emphasis added). Second, Paragraph 7(b) provides:
Subcontractor shall submit in writing any claims for adjustment in the price, schedule or other provisions of the Subcontract claimed by Subcontractor for changes directed by Oumer, or for damages for which the Oumers [sic] liable, or as a result of deficiencies or discrepancies in the Contract Documents, to Contractor in time to allow Contractor to comply with the applicable provisions of the Contract Documents. Contractor shall process said claims in the manner provided by and according to the provisions of the Contract Documents so as to protect the interests of Subcontractor and others including Contractor. Subcontract adjustments shall be made only to the extent that Contractor receives relief from or must grant relief to Owner. Further, each Subcontract adjustment shall be equal in laid [sic] Subcontractor’s allocable share of any adjustment in Contractor’s contract with owner....
(Emphasis added). Finally, Paragraph 9(a) provides:
In case of any dispute between Contractor and Subcontractor, due to any action of Owner or involving the Contract Documents, Subcontractor agrees to be bound to the same extent that Contractor is bound to Owner, by the terms of the Contract Documents .... In case of such dispute, Subcontractor will comply with all provisions of the Contract Documents allowing a reasonable time for contractor to analyze and forward to Owner any required communications or documentation. Contractor will, at its option (1) present to Owner, in Contractor’s name, or (2) authorize Subcontractor to present to Owner, in Contractor’s name, all of Subcontractor’s claims and answer Owner’s claims involving Subcontractor’s Work, whenever Contractor is permitted to do so by the terms of the Contract Documents. IF [sic] such dispute is prosecuted or defended by Contractor, Subcontractor agrees to furnish all documents, statements, witnesses, and other information required, and to pay or reimburse Contractor for all costs, including attorneys’ fees, incurred in connection therewith....
(Emphasis added). Carolina and Travelers assert that Paragraph 6(d) constitutes an admission and “liquidation]” of liability by Trataros to Crocetti, and that the other two paragraphs “provide a mechanism for the ‘pass-through’ to Crocetti” of any recovery made by Trataros and/or “a method for the Subcontractor to make claims [against the Owner] and for the Contractor to prosecute such claims in its own name on behalf of the Subcontractors.”
Travelers has not demonstrated that it has legal standing to assert claims on Crocetti’s behalf. As noted, the critical element missing is an admission of liability by Trataros (or Travelers) to Crocetti. Although Paragraph 6(d) of the Subcontract does suggest a “pass-through” of any damages recovered from DASNY by Trataros to Crocetti, that clause does not “impose[ ] liability upon the general contractor for the subcontractor’s increased costs.” Barry, 669 N.Y.S.2d at 743. Instead, Paragraph 6(d) provides only that Crocetti “shall not be entitled to” any damages “unless the Owner is liable and pays Contractor.” Similarly, Paragraph 7(b) and Paragraph 9(a) reflect conditional obligations on the part of Trataros. In Paragraph 7(b), Trataros merely agrees to “process [any] claims” made by Crocetti “for damages for which the Owners [sic] liable” in accordance with the Contract Documents. Likewise, in Paragra