Construction projects in New York City are often fast-paced and large in scale. As a result, the attention of both contractors and owners is often focused on the progress of construction and not the details of the underlying agreement between the parties, and therefore, it is not uncommon for certain contractual terms to be overlooked. Many construction contracts include some form of notice provision, requiring one party to provide the other with written notice of a given event at a specified time in order to trigger certain rights or obligations under the agreement. A failure to satisfy such a notice requirement can, in certain circumstances, lead to the forfeiture of contractual rights. This article will address the enforceability of such requirements.
Notice Provisions
In general, New York courts enforce contractual notice provisions strictly and in accordance with their express terms.1 However, there are circumstances in which courts have shown a willingness to accept something less than strict compliance with the literal terms of a notice provision.2 A court's analysis depends heavily on the nature and wording of the notice provision in question and the surrounding circumstances. "Strict" notice provisions almost always render notice a condition precedent to the triggering of a contractual right or duty.3 "A condition precedent is an act or event…which, unless the condition is excused, must occur before a duty to perform a promise in the agreement arises"4 —for example, a duty to make payment. Courts also note that strict notice provisions often "contain a statement setting forth the consequences of a failure to strictly comply."5 For example, a strict notice provision may state that a failure to conform to its requirements results in the waiver of any right to additional compensation under a contract.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
