Preserve Specific Claims When Requesting More Time on a Public Contract

Reviewed September 7, 2026.

A time-extension request can also waive claims if the contract requires detailed reservations. In Matter of LAWS Construction Corp. v. Contract Dispute Resolution Board, 145 AD3d 523 (2016), the First Department upheld determinations that a broadly worded list in the sixth extension request did not adequately preserve the claims at issue.

The contractor could not rely on the City's treatment of earlier requests to overcome the contract's anti-estoppel provision and the general limits on estoppel against government entities. The court also upheld treatment of one claimed cost increase as delay damages barred by the contract.

Review the request before it is sent

Identify each reserved claim, its factual basis, affected work, dates and requested relief with the detail the contract requires. Check for releases in extensions, change orders and payment applications. A general reservation of “all rights” may not satisfy a specific requirement.

Keep the notices, supporting documents and proof of submission together. Seeking more time, preserving a compensation claim and pursuing the prescribed dispute procedure can involve separate obligations and deadlines.

Kushnick Pallaci PLLC assists clients throughout New York with public construction contracts and procurement. Contact 631-752-7100 or vtp@kushnicklaw.com.

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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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Daily Extra-Work Records Can Be a Condition of Payment

Reviewed September 7, 2026.

F. Garofalo Electric Co., Inc. v. New York University, 300 AD2d 186 (2002), illustrates the importance of contract-specific extra-work documentation.

The contract required daily statements countersigned by the construction manager with worker names, hours, work descriptions and material quantities. The First Department upheld dismissal of the challenged extra-work amounts lacking that documentation. It separately reinstated the ordinary contract claim and denied summary judgment on the owner's counterclaims because substantial-performance issues remained.

Set up the records before extra work starts

Identify who may authorize the work and countersign tickets. Record labor, materials, equipment, location and the directive that caused the change. Submit the required notice and pricing within the contractual deadlines, and keep delivery and approval evidence.

Do not infer from completion of the underlying project that every extra-work claim is payable. Conversely, a documentation problem with one category of work does not necessarily decide every contract claim. If the parties depart from the written process, obtain written confirmation and advice rather than relying on an assumed waiver.

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

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Complete Required Dispute Steps and Preserve the Lien: MCC Development

Reviewed September 7, 2026.

In MCC Development Corp. v. Perla, 81 AD3d 474 (2011), the First Department affirmed dismissal of contract-related claims, discharge of a mechanic's lien and cancellation of a notice of pendency. The contractor had not completed the required initial architect decision and mediation before litigation.

The defendants' protective court filings did not waive the contractual dispute process. The decision demonstrates the consequences of starting an enforcement action before satisfying applicable conditions precedent.

Coordinate the contract process with statutory deadlines

The opinion addresses the premature litigation before it; it should not be read as permission to let a lien filing or preservation deadline expire while mediation proceeds. Review the contract's current edition and amendments, required decision maker, mediation steps and any exceptions.

Separately preserve a lien under the applicable provisions of Lien Law § 17 for private improvements or § 18 for public improvements. Available extensions depend on the lien and timely compliance. A court does not automatically revive an expired lien merely because ADR is pending. Obtain advice before choosing dismissal, a stay or an extension application.

Kushnick Pallaci PLLC assists clients throughout New York with construction arbitration and dispute resolution. Contact 631-752-7100 or vtp@kushnicklaw.com.

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