Reviewed September 7, 2026.
In McNamee Construction Corp. v. City of New Rochelle, 60 AD3d 918 (2009), the Second Department reversed the denial of summary judgment and dismissed the claim against the City under a no-damages-for-delay clause.
The contract and the contractor's conduct showed that utility interference was contemplated. The experienced excavator also should have foreseen the possibility that a utility company would be unable or unwilling to relocate its infrastructure. The asserted circumstances therefore did not establish an uncontemplated-delay exception.
Investigate and allocate utility risks
Review available utility information, relocation responsibilities, access assumptions and the schedule before pricing the work. Address what happens if information is incomplete or a third-party relocation is delayed. Keep written notices and records of the actual interference.
This historical decision does not bar every utility-related claim. The agreement, representations, cause of delay and evidence supporting a recognized exception must be examined. A delay waiver and a differing-site-condition or extra-work provision may raise distinct issues that need to be read together.
Kushnick Pallaci PLLC assists clients throughout New York with construction delay and change-order disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.
Attorney Advertising. General information, not legal advice.
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