Reviewed September 7, 2026.
Delay claims need evidence connecting a compensable event to an actual increase in cost. In Mascorp, Inc. v. United States Fidelity & Guaranty Co., 122 AD3d 1195 (2014), the Third Department affirmed dismissal of claims against a payment-bond surety.
A clear release barred the first-phase delay claim. The claimant also failed to provide a supported damages calculation: its cost report showed a profit, and its expert did not identify a reliable connection between the source records and claimed increased costs. The opinion should not be reduced to a universal rule that a profitable project can never suffer compensable delay costs.
Build a traceable calculation
Identify the delaying event, responsible party, affected activities, duration and resulting labor, equipment or overhead expense. Reconcile expert calculations to contemporaneous records, and account for payments, credits and unrelated cost causes.
Review releases, notice requirements and contractual limits before commissioning a damages analysis. A detailed opinion cannot restore a released claim or replace missing evidence of causation and loss. Preserve both the legal basis for recovery and the underlying project data.
Kushnick Pallaci PLLC assists clients throughout New York with construction delay disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.
Attorney Advertising. General information, not legal advice.
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