No-Damages-for-Delay Clauses: The LoDuca Decision

Reviewed September 7, 2026.

In LoDuca Associates, Inc. v. PMS Construction Management Corp., 91 AD3d 485 (2012), the First Department enforced the contract's no-damages-for-delay provisions.

The asserted design problems were among the contemplated delay causes. Allegations of poor planning or administration did not establish the required misconduct. A lengthy delay remained relevant to the analysis but did not, by itself, turn an expressly contemplated cause into an uncontemplated one.

Evaluate the actual exception and proof

New York recognizes exceptions, including qualifying bad faith or serious misconduct, uncontemplated delays, delay amounting to intentional abandonment and breach of a fundamental contractual obligation. Invoking an exception requires more than showing that the project ran late or became expensive.

Before signing, compare the clause with time-extension rights, change compensation and other damage waivers. During the project, preserve notices, schedules, directives and cost records. Distinguish a claim for an actual change in scope from a delay claim; changing its label alone does not avoid a contractual limitation.

Kushnick Pallaci PLLC assists clients throughout New York with construction delay disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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