Does Notice Provision Apply to Delay Damages ?

In American Std. v. New York City Tr. Auth. (167 AD2d 494 [1990], lv denied 78 NY2d 860 [1991]), the Appellate Division, Second Department, held that a virtually identical provision was applicable to a contractor's claim for delay damages. The Court further held that the contractor's noncompliance with the provision required dismissal of the delay damage claim, notwithstanding that the contractor had given contemporaneous notice of the delays (specifically, the conditions which threatened to delay performance) under a different provision of the contract. In Gemma Constr. Co. v. City of New York (246 AD2d 451 [1998]), the Appellate Division of this Department was called upon to determine the applicability to a delay damage claim of a notice provision similar to that in American Std. (supra). The Court noted the American Std. holding but, for several reasons, held that the notice provision did not apply to delay damages.