Non-excusable, Concurrent, and Non-compensable Excusable Delays

A non-excusable delay is caused by a contractor. Therefore, a contractor that is responsible for the delay will not be entitled to an extension of time or delay damages for the delay that it has caused. Causes associated with a non-excusable delay include failing to submit shop drawings in a timely manner (Erecto Corp. v. State, 29 A.D.2d 728, 286 N.Y.S.2d 562 (3d Dep’t 1968), failing to commence work as required by the contract (Id.), proving poor workmanship or improperly allocating labor and materials, lacking the proper equipment needed to perform the work, or failing to make progress with the project. Herbert G. Martin, Inc. v. City of Yonkers, 54 A.D.2d 971, 338 N.Y.S.2d 673 (2d Dep’t 1976). Also, in Lake Steel Erection, Inc. v. Egan, 61 A.D.2d 1125, 403 N.Y.S.2d 387 (4th Dep’t 1978), failing to coordinate work, or failing to perform work on time was found to be a non-excusable delay resulting in the contractor’s inability to recover delay damages or an extension of time.

Contractors guilty of non-excusable delays may be liable to the owner for delay damages, either on the actual damages as indicated in Cooperstien v. Patrician Estates, 117 A.D.2d 774, 499 N.Y.S.2d 423 (2d Dep’t 1986), or a liquidated damages basis as indicated in Melwood Const. Corp. v. State, 126 Misc.2d 156, 481 N.Y.S.2d 289 (Ct. Cl. 1984). Non-excusable delays can be grounds for rescission or termination of the contract, or an order of acceleration.

Concurrent delays arise when one event causes a delay simultaneously with another event. For example, if an owner denies access to a project site for two weeks, and a severe storm prevents the contractor from working on the project for one of those two weeks as well, there will be a concurrent delay of one week. The contractor will be able to recover for delay damages for one week, as a severe storm is not a cause of delay that is compensable and would have prevented the contractor from performing even if the owner did not deny access to the site.

Non-compensable excusable delays entitle a contractor to an extension of time only. Typically, this type of delay is caused by something beyond the control of either the contractor or the owner. For example, acts of God, unusual weather and labor disputes will entitle a contractor to additional time to complete the work, and is usually the contractor’s only remedy. Contractors may agree to make a compensable delay a non-compensable one by waiving their right to delay damages in exchange for an extension of time, and generally such waivers are valid. Mars Associates, Inc. v. City of New York, 70 A.D. 2d 839, 418 N.Y.S.2d 27 (1st Dep’t 1979). If a contractor specifies that a particular delay shall not be compensable, as was the circumstance in Jaffie Contracting Co., Inc. v. Board of Educ. Of City of New York, 90 A.D.2d 163, 456 N.Y.S.2d 375 (1st Dep’t 1982), or has a valid No Damage for Delay provision, the delay is non-compensable for all practical purposes.

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