Article by: Cavan S. Boyle

A recent Appellate Division decision serves as a pointed reminder that no damages for delay (“NDFD”) clauses remain formidable barriers to recovery in construction disputes, and that courts will examine the substance of a claim, not merely how it is labeled. In Henick-Lane, LLC v. Stellar Mgmt. Grp., Inc., the court enforced a subcontract’s NDFD clause and unanimously rejected the subcontractor’s attempt to recover delay related costs by characterizing its claims as “extra work.”¹ 

The action involved eight change order requests submitted by subcontractor Henick-Lane, LLC (“Henick-Lane”) seeking compensation from contractor Stellar Management and related parties (collectively, “Stellar”) for additional costs allegedly caused by project obstructions, disruptions, and changes to Henick-Lane’s work. Stellar moved for summary judgment, arguing that despite characterizing the claims as “extra work,” Henick-Lane’s requests were, in substance, delay claims subject to and barred by the subcontract’s NDFD clause. The trial court agreed and dismissed the claims. Henick-Lane appealed.

In affirming the dismissal, the First Department applied a foundational principle of New York contract law: where contract language is unambiguous, its plain meaning controls. The subcontract provided if Henick-Lane was “obstructed, hindered or delayed” in performing its work, whether “by [Stellar]…or by changes in the Work”, the “sole and exclusive remedy” was an extension of time. The court then turned to whether Henick-Lane’s claims truly sought payment for “extra” work or were merely repackaged delay claims. Emphasizing that labels are not controlling, the court examined the factual predicate of each claim and concluded that the change order requests were grounded in project delays and disruptions. As such, they fell squarely within the clear and undisputed scope of the NDFD clause.

The court next considered whether any of New York’s recognized exceptions to the enforceability of NDFD clauses applied and concluded that none favored Henick-Lane.²

First, the court held that allegations of inept or deficient project administration did not rise to the level of willful, malicious, or bad faith conduct sufficient to vitiate an NDFD clause. Second, because the subcontract expressly contemplated delays arising from the contractor’s acts or omissions—and limited Henick-Lane’s remedy to time extensions—any associated delay related costs were necessarily within the parties’ contemplation and therefore barred. Third, the court rejected Henick-Lane’s argument that Stellar’s alleged failure to provide a crane constituted a breach of a fundamental contractual obligation. The court reiterated that ordinary or “garden variety” breaches do not qualify as fundamental breaches of the type contemplated by Corinno Civetta, such as a failure to obtain title to or access to the work site. 

Henick-Lane also argued that the prevention doctrine barred Stellar from invoking the NDFD clause. The court rejected this contention, explaining that the prevention doctrine applies to conditions precedent and prohibits a party from relying on another’s failure to satisfy a condition precedent where that failure was caused by the party seeking enforcement. An NDFD clause, by contrast, is an exculpatory provision allocating the risk of delay between contracting parties and does not implicate conditions precedent to payment. Accordingly, the prevention doctrine was deemed inapplicable. 

The Henick-Lane decision reaffirms New York’s strict enforcement of a contract’s unambiguous language, including no damages for delay clauses. The decision also highlights the importance of evaluating these provisions at the contract negotiation stage and developing an evidentiary record that fits squarely within the narrow, recognized exceptions, as courts will look beyond how a claim is labeled to determine whether it is, in reality, a barred delay claim. 

1. Henick-Lane, LLC v. Stellar Mgmt. Grp., Inc., 242 N.Y.S.3d 587, 588 (1st Dept. 2025).
2. The three exceptions, as applied in Corinno Civetta Construction Corp. v. City of New York, 67 N.Y.2d 297 (Ct. App. 1986) are delays that are: (1) willful, malicious, or in bad faith; (2) not contemplated by the parties; or (3) constitute a breach of a fundamental contractual obligation.