Franco Belli Plumbing and Heating & Sons, Inc. v. Citnalta Const. Corp, et al. 2015 WL 1058420 (1st Dept, Mar 12, 2015) In this case Franco Belli was a sub to Citnalta, the GC on an SCA project. Travelers issued a payment bond on behalf of Citnalta. At Citnalta’s written direction Franco Belli incurred costs to accelerate the project. The SCA would not pay Citnalta for some of the extra costs submitted by Franco Belli, which led to Franco Belli suing Citnalta and Travelers. Paragraph 8.2 of the subcontract states: “The Subcontractor hereby waives and releases any and all claims, causes of action, and rights to additional payment and time extensions beyond the contract amount, except to the extent that Citnalta Construction Corp. may receive additional funds or extensions of time on Subcontractor’s behalf for Change Orders and extra work from the Owner or Architect/Engineer.” As stated by the trial judge [43 Misc.3d 1235(A)] “Defendants rely upon paragraph 8.2 as its primary shield against plaintiff’s claim. Franco Belli argued that 8.2 was a void pay-if-paid provision under the familiar West-Fair decision. Citnalta argued that 8.2 barred a sub from “recovering on claims on which it fails to establish entitlement.” The court held that ” paragraph 8.2 constitutes an unenforceable pay-when-paid provision” [which I agree with, for whatever that’s worth] and denied the parties’ cross motions for summary judgement. Both parties appealed. In its decision correctly affirming the decision below, the First Dept. unfortunately states “This paragraph [8.2], along with paragraphs 8 and 8.1, merely establish an orderly procedure whereby Citnalta, the general contractor, can submit claims for increased cost, including those made on plaintff’s behalf to SCA, when appropriate. We find they have no applications to plaintiff’s claim, which is against Citnalta, not SCA, and we therefore do not reach the issue of whether they are otherwise unenforceable.” Unfortunately this decision only muddies the water in the evolution of the pay-if-paid discussion. To say that 8.2, in which the sub waives its right to compensation for extras, is only part of an “orderly procedure” for the GC to submit a claim to the owner, frankly makes no sense. It is also not at all clear why the court would state that paragraph 8.2 in the subcontract, had no application to the sub’s claim against the GC. This will be a troublesome case for subs and suppliers until it is clarified. Regarding no-damage-for-delay, the court stated at the end of its opinion: ” Arguments by the parties about whether plaintiff is seeking delay or acceleration damages are without merit; regardless of the nomenclature used, plaintiff’s claim is for its increased costs (see, Corinno Civetta ……..).”  Treating  delay claims as synonymous with acceleration claims is not helpful as they are distinguishable [(see, 33 N.Y.Prac., New York Construction Law Manual § 7:44, et seq (2d ed.)] . The reference to Corinno Civetta is likewise not helpful since it only dealt with delay claims.