Proving Construction Delay Costs: Lessons from Mascorp

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.

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Construction Collapse Response: Safety, Reporting, Evidence and Insurance

Reviewed September 7, 2026.

A construction collapse requires immediate protection of people and coordinated professional response. Call 911 for an emergency, evacuate or secure the area as directed, and follow responders’ instructions. Evidence collection must never delay rescue, stabilization or necessary safety measures.

Report and stabilize

For New York City incidents, follow DOB’s worksite incident reporting instructions. Injury incidents require immediate reporting and specified additional information within three business days. Equipment damage also has reporting requirements. Evaluate separate OSHA and other applicable reporting obligations promptly. Engage qualified engineers and authorized contractors; do not reenter or resume work contrary to an order.

Preserve the evidence that can safely be preserved

Record conditions from a safe location, identify witnesses, and preserve plans, site logs, monitoring readings, photographs, messages, inspection records and equipment information. Suspend routine deletion of relevant electronic records when litigation is reasonably anticipated. Coordinate any destructive examination or disposal with counsel, engineers, insurers and other parties as appropriate, while allowing urgent safety work to proceed.

Protect insurance and contract rights

Notify all potentially applicable insurers using the policy’s required procedure, including relevant liability, property, builder’s risk and additional-insured coverage. Keep proof of notice. Review contracts for incident reporting, delay notices, time-extension requests, indemnity and cooperation requirements. A certificate of insurance alone does not establish the scope of coverage.

Counsel can coordinate investigation and claims without substituting for emergency responders or engineers. Keep a clear record of why emergency measures were necessary and what they cost. This article addresses property damage, contractor defense and construction risk management; the firm does not handle plaintiff personal injury claims.

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

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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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Contractor Risks in AIA A201: Notices, Disputes and Damages

Updated September 7, 2026. An AIA form number is the starting point for contract review. The edition, completed owner-contractor agreement, supplementary conditions and project amendments determine the actual obligations. This overview discusses the standard A201–2017 framework.

Check the dispute-resolution selection

Using A201 does not, by itself, mean every dispute must be arbitrated. For example, A101–2017 § 6.2 permits the parties to select arbitration, litigation or another method. Its default is litigation if no different method is selected or subsequently agreed in writing.

Review the applicable initial-decision and mediation steps, any exceptions and the selected binding process together. Starting the wrong proceeding or missing a required preliminary step can complicate an otherwise valid claim. Kushnick Pallaci PLLC assists with construction arbitration and related contract disputes.

Do not use one notice deadline for every event

The AIA's explanation of A201–2017 distinguishes claims arising before the correction period ends from later claims. The former generally involve a 21-day notice requirement under Article 15; the latter are not subject to that same 21-day rule. Other provisions can impose different requirements: the 2017 concealed-or-unknown-condition provision uses a 14-day reporting period.

Check the specific trigger, recipient, delivery method and supporting information in the signed documents. An ordinary project email may not satisfy a formal claim-notice requirement. Do not plan on excusing a late notice through an assumed waiver or informal conversation.

Read the actual damages waiver

A201–2017 § 15.1.7 contains a mutual consequential-damages waiver. Its treatment of contractor profit expressly distinguishes anticipated profit arising directly from the work. A waiver therefore should not be summarized as eliminating every lost-profit claim or every form of delay recovery.

Review the categories waived, amendments, direct-damage claims and any liquidated-damages provision together. The AIA's consequential-damages overview and the firm's discussion of consequential damages in construction claims provide background.

Turn the contract into a working checklist

Before work begins, record the notice addresses, change-order procedure, payment requirements, insurance and bond obligations, termination provisions and claim deadlines. Keep that checklist with the complete executed contract and update it when the parties sign a modification.

Kushnick Pallaci PLLC provides construction contract drafting and review for project-specific risk allocation.

This article provides general information. An older A201 edition or amended contract may produce a different result.