Nonpayment, Work Stoppage and Notice: U.W. Marx v. Koko Contracting

Reviewed September 7, 2026.

In U.W. Marx, Inc. v. Koko Contracting, Inc., 124 AD3d 1121 (January 22, 2015), the Third Department affirmed a judgment for a roofing subcontractor after trial. The general contractor had materially breached by withholding three successive progress payments without justification.

Although the subcontractor stopped work before complying with the contractual suspension notice, the prior uncured material breach excused its remaining performance in these circumstances. The court did not make the notice clause meaningless: noncompliance would prevent recovery of contractual remobilization costs if work resumed. Had nonpayment been justified, the unnotified stoppage could itself have exposed the subcontractor to damages.

Do not assume every missed payment excuses performance

Assess entitlement to payment, disputed work, the materiality of the breach and the contract's cure and suspension procedures. Give compliant notice whenever required and preserve the evidence. Contractual remedies and any applicable statutory suspension remedy require separate analysis. This school-project decision is not a substitute for following the Prompt Payment Act on a covered private project.

Kushnick Pallaci PLLC assists clients throughout New York with construction contract litigation. Contact 631-752-7100 or vtp@kushnicklaw.com.

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