PIZZAROTTI, LLC v. X-TREME CONCRETE INC.

Index Nos. 655471/17, 451148/18. Appeal No. 15586. Case No. 2021-02419.

205 A.D.3d 487 (2022)

169 N.Y.S.3d 29

2022 NY Slip Op 03085

Pizzarotti, LLC, Respondent, v. X-Treme Concrete Inc., Also Known as Xtreme Concrete Inc., et al., Appellants. Engineered Devices Corp., Plaintiff, v. Xtreme Concrete Inc. et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

Decided May 10, 2022.


Attorney(s) appearing for the Case

Pollack, Pollack, Isaac & DeCicco, LLP, New York ( Brian J. Isaac of counsel), for appellants.

Peckar & Abramson, P.C., New York ( Puja Sharma of counsel), for respondent.

Concur—Kern, J.P., Moulton, Rodriguez, Pitt, Higgitt, JJ.


Defendant/counterclaim plaintiff Xtreme Concrete's counterclaim for delay damages was properly dismissed as barred by the subcontract's no damages for delay provision. Contrary to Xtreme's assertion that it seeks damages for delays not within the parties' contemplation at the time the subcontract was entered into, the cause of the subject delay—incomplete drawings —was expressly mentioned in the contract as a possibility and was therefore, "by definition, `contemplated...

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