{"id":905516,"date":"2026-04-01T16:00:02","date_gmt":"2026-04-01T22:00:02","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=905516"},"modified":"2026-04-01T16:00:04","modified_gmt":"2026-04-01T22:00:04","slug":"damages-for-delay-addressing-contractually","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/damages-for-delay-addressing-contractually\/","title":{"rendered":"Addressing Damages for Delay Contractually"},"content":{"rendered":"\n

David J. Pfeffer, Sean T. Scuderi, Eric Zipkowitz and Brian J. Markowitz | Tarter Krinsky & Drogin<\/a><\/p>\n\n\n\n

Construction delay damages<\/a> are a frequent source of dispute on construction projects.\u00a0 When delays occur, owners and contractors often seek to recover increased costs, extended general conditions, lost productivity, and, in some cases, lost profits.\u00a0<\/p>\n\n\n\n

To succeed on a delay claim, a party must typically show that the delay was excusable, compensable, and not concurrent, and must be able to quantify its damages with reasonable certainty. Many contracts require timely notice of delays, and often require detailed project records, such as schedules, daily reports, and cost data, to substantiate the delays and the resultant damages.  These clauses are generally strictly enforced by the Courts in New York, and failure to follow the contractual notice provisions can be deemed a waiver of the claim.<\/p>\n\n\n\n

Structuring Delay Damage Provisions in Construction Contracts<\/strong><\/p>\n\n\n\n

Contractually, one can choose to address delay damages via so-called \u201cliquidated damages\u201d or by providing for a calculation of \u201cactual delay damages\u201d.  In either case, there is likely to be a discussion of \u201ccapping\u201d the contractor\u2019s total liability.  Whether liquidated or actual, a well drafted delay damages provision will not only outline the method of calculating damages, but will also clearly address the agreed upon procedure for requests for extensions of time (EOTs); require prompt written notice of events or circumstances that might reasonably be expected to result in an EOT request;  and will set forth a defined dispute resolution path so as to help mitigate the period of delay\/total damages incurred.<\/p>\n\n\n\n

Another way to address delay, is through a \u201cno-damages-for delay\u201d clause.  This contract provision provides that a contractor is entitled to an extension of time to complete the contract for its own excusable delays, but is not entitled to any damages or extended general conditions.  New York courts generally enforce \u201cno-damages-for-delay\u201d clauses, but important exceptions exist, including delays caused by the owner\u2019s bad faith, gross negligence, active interference, or delays that were uncontemplated at the time of contracting.<\/p>\n\n\n\n

Parties should ensure that their contracts clearly define rights, obligations, and procedures related to delays. The following provisions are particularly important to address:<\/p>\n\n\n\n

Key Provisions<\/strong><\/p>\n\n\n\n