July 10, 2026

Jordan R. Pavlus Obtains Fourth Department Appellate Division Decision Clarifying Method of Proving Delay Damages

Jordan R. Pavlus recently obtained a decision from the Fourth Department Appellate Division which clarified the required method of proving delay damages on a commercial construction project. In the case, an electrical subcontractor attempted to prove its delay/disruption damages by comparing its actual costs to its bid calculations. The Supreme Court granted the electrical subcontractor summary judgment on this basis. On appeal, the Fourth Department reversed this ruling, stating ” “[I]t has repeatedly been held improper to prove excess labor costs by comparing the total labor costs for the project with the bid estimate for the labor, because of[, among other things,] the inherent unreliability of the price elements of a bid.”

Ultimately, the Court held the measure of damages was a matter for the trier of fact. This is an important Fourth Department Appellate Division case clarifying how subcontractors can prove delay/disruption damages.

The case can be found at LPCiminelli, Inc. v. JPW Structural Contracting, Inc., 217 A.D.3d 1380 (4th Dept. 2023).