In November 2023, a trial court in New York County dismissed a contractor’s two-million-dollar delay claim against the New York City Department of Design and Construction (“DDC”) due to its failure to file its lawsuit within six (6) months of substantial completion of the project as required under Article 56 of the standard New York City construction contract. Admiral Construction, LLC v. New York City Department of Design and Construction, 2023 NY Slip Op 34066 (N.Y. County 2023).
The court found that because the DDC issued a certificate of substantial completion on December 15, 2016, Admiral was required to file its lawsuit for delay damages within six months or no later than June 15, 2017. However, Admiral did not do so until February 2022. In its defense, Admiral argued that the six-month limitations period should have been tolled because it was in discussions with the DDC and Comptroller’s Office regarding resolution of its delay claim and request for a final time extension. According to Admiral, because its delay claim was under review it had no reason to file a lawsuit against the DDC at that time.
The court rejected this argument holding that “any purported representation or assurances by the City’s representatives did not serve to toll the limitations period, which was explicit in the parties’ contract”.
Comment:
Many contractors performing public works under the standard New York City construction contract are not aware that they only have six (6) months to sue the City or a city agency for delay damages from the date of substantial completion of the project. Moreover, the City’s review of a contractor’s delay claim or its failure to reject it does not toll the six-month contractual limitations period. Simply put, after a contractor submits a delay claim to the City under the standard City contract it must file a lawsuit within six (6) months of substantial completion regardless of whether the City, Comptroller or agency has responded to its claim. In fact, it has become the City’s practice to not resolve delay claims with a contractor until after a suit has been filed.
About the author: George Marco is an attorney practicing in the field of construction law. He also holds a Bachelor of Science in Mechanical Engineering and was previously employed as a Project Manager for a public improvement contractor.
If you would like more information regarding this topic or any other related to construction law please contact George Marco at george@gmarcolaw.com or call (516) 464-2320.
Disclaimer: This article is for informational purposes only and not intended to serve as legal counsel.
