Owner-Caused Excusable Construction Delays

It is a general rule that a party must fulfill its contractual obligations within the contract period unless performance is rendered impossible by an act of God, the law, or another party, and unforeseen difficulties in construction will not excuse the performance and fulfillment of the contract. Dermott v. Jones, 69 U.S. 1 (1864). Contractors will often include an exculpatory clause within the contract, providing for excusable delays. This excusable delay clause provides that a failure or delay in performance will not subject a contractor to a default action or damages if the delay is due to a cause beyond the control and without the fault or negligence of the contractor. For a delay to be excusable, it must directly affect the ability of the contractor to complete the job as scheduled.

Owner-caused delays may be considered excusable, and will entitle a contractor to extra time, at a minimum. When delays are caused by the owner of a construction project the completion date of the contract becomes inoperative and the contractor is given reasonable time for completion of the work. For example, when an owner delays work due to a dispute with an adjoining landowner, an extension of time will be afforded to the contractor. Smith v. Vail, 53 A.D. 628, 65 N.Y.S. 834 (1st Dep’t 1990). If the owner significantly changes plans so as to make the original deadline unattainable (Rao Elec. Equipment Co. v. State, 36 A.D.2d 1019 (4th dep’t 1971)), fails to properly coordinate the work or supplies (Forest Elec. Corp. v. State, 30 A.D.2d 905 (3d Dep’t 1968)), the designs of the owner or its architect or engineer are negligent or defective (Grow Const. Co., Inc. v. State, 56 A.D.2d 95 (3d Dep’t 1977)), or extra work is required because the owner breached the contract or delays in issuing the order to commence work (Mount Vernon Contracting Corp. v. State, 56 A.D.2d 952 (3d Dep’t 1977)), extra time will often be afforded to the contractor to complete the work.

In most circumstances, an owner that is responsible for delay cannot terminate its contract for failing to comply with the contract time provisions, even where the contractor may be responsible for some delay. Walter Sign Corp. v. State, 31 A.D.2d 729 (4th Dep’t 1968).

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