Notice Requirements for Construction Delays

Prompt written notice of any act or event that caused delay is often required and usually contained in construction contracts, and may be a condition precedent to request an extension of time, to not complete the work as per the schedule, or for damages due to the delay. The purpose of notice provisions, in general, are to provide an owner with notice of claims so that an investigation may be made, and so that the validity of the claim and any action taken to mitigate the delay may be ascertained. Board of Ed. of Enlarged Ogdensburg City School Dist. v. Wager Const. Corp., 37 N.Y.2d 283, 372 N.Y.S.2d 45 (1975). It is typically understood that substantial compliance with a notice provision is a condition precedent to a contractor’s right to an extension of time and damages (Vanderlinde Elec. Corp. v. City of Rochester, 54 A.D.2d 155, 388 N.Y.S.2d 388 (4th Dep’t 1976)), unless only contractual, not statutory, notice provisions apply and the contractor has actual knowledge of the delay. Hunts Point Multi-Service Center, Inc. v. Terra Firma Const. Management & General Contracting, LLC., 5 A.D.3d 183, 773 N.Y.S.2d 48 (1st Dep’t 2004).

Notice requirements should be complied with as closely as possible, and a failure to give written notice may be fatal to a delay claim, even if the delay was obvious to or known by the owner. Written notice is often required where a public entity is involved, and contractors should not rely on a court holding that the owner waived the notice requirements. Huff Enterprises, Inc. v. Triborough Bridge and Tunnel Authority, 191 A.D.2d 314, 595 N.Y.S.2d 178 (1st Dep’t 1993). Notice requirements for public construction projects are set forth in statutes, which are automatically part of every contract made by most government entities, including school districts and the State itself. Anderson Const. Co. v. Board of Ed., Union Free School Dist. No. 3, Town of Babylon, 229 N.Y.S.2d 337 (Sup. 1962). Furthermore, compliance with statutory notice provisions is mandatory to maintain a claim. Public Improvements, Inc. v. Board of Ed. of City of New York (P.S. 72, Bronx), 81 A.D.2d 537, 438 N.Y.S.2d 305 (1st Dep’t 1981).

A notice of claim is typically due within a specified number of days after a delay claim arises, and may vary from a few days to as many as 90 days. On state contracts, notices of claim are due 40 days from the mailing of the final payment (N.Y. State Fin. Law § 145)), while school contracts have 3 months from the accrual of the claim. N.Y. Educ. Law § 3813(1). In determining whether notice was timely given, the time frame for when notice began to run must be established. The time frame begins to run, often, from the accrual of the claim or the date the claim arose. Vanderlinde Elec. Corp., 54 A.D.2d 155.

A delay damage claim arises when the contract is substantially completed or when the contract is terminated or work ceases. Nyack Bd. of Educ. V. K Capolino Design and Renovation, Ltd., 114 A.D.2d 849, 494 N.Y.S.2d 758 (2d Dep’t 1985). Substantial completion allows the contractor to itemize the damages and realistically estimate the remainder of the damages. Board of Ed. of Enlarged Ogdensburg City School Dist., 37 N.Y.2d 283. Furthermore, depending on the statute or contract involved, a notice of claim may be ineffectual or premature if filed before the accrual of the claim. Anderson Const. Co., 229 N.Y.S.2d 337.

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