However, in the recent case of Tekton Builders, LLC v. 1232 Southern Boulevard LLC, an appellate court reminded us that even when a contract contains a modification only in writing provision, the parties’ course of conduct, or how they deal with one another during the project, can amount to a waiver of contractual requirements, including those requiring written notice.

Background – In March 2015, 1232 Southern Boulevard LLC, the entity that owns the property housing the Children’s Aid College Prep School, entered into an agreement with Tekton Builders for Tekton to serve as construction manager for Children’s Aid’s charter school project. The project was scheduled for completion before the 2016 to 2017 school year, but it experienced numerous delays from the outset. These delays were thoroughly discussed by all relevant parties during jobsite meetings, through email correspondence, and in other project documentation.

Ultimately, in January 2017, Tekton was terminated and commenced an action to foreclose its mechanic’s lien and recover its costs, including extended general conditions and work performed after the original completion date.

After discovery, Children’s Aid moved for summary judgment dismissing Tekton’s delay and change order claims, arguing that Tekton failed to comply with the contract’s notice requirements and therefore waived its right to recover those costs. Children’s Aid also sought summary judgment discharging Tekton’s mechanic’s lien, alleging that it was willfully exaggerated.

In opposition, Tekton argued that Children’s Aid had been kept fully informed of the nature and extent of the delays through meetings, email correspondence, proposed change orders requesting extensions of time and associated costs, and stop work orders issued by the city. Accordingly, Tekton maintained that Children’s Aid could not credibly claim prejudice resulting from the failure to reduce information already known to all parties into the contractually required written form.

Tekton further argued that, to the extent the contract required formal written notice, Children’s Aid had waived that requirement through its own conduct by failing to respond promptly to change order requests while simultaneously directing additional work despite the lack of formal approvals.

Decision – The motion court denied the portion of Children’s Aid’s motion seeking summary judgment based upon Tekton’s alleged failure to satisfy the written notice condition precedent. The court held that issues of fact existed as to whether Children’s Aid had waived the contractual notice requirement through its course of conduct and determined that those issues would have to be resolved at trial.

The motion court did, however, grant Children’s Aid summary judgment discharging Tekton’s mechanic’s lien, finding that it had been willfully exaggerated. The amount of damages sustained by Children’s Aid as a result would be determined at trial.

Children’s Aid appealed the denial of summary judgment on its written notice defense but fared no better before the appellate court. In affirming the lower court’s order, the appellate court held that “even when a contract contains a nonwaiver clause and a provision stating that it cannot be modified except by a writing, it can still be effectively modified by actual performance and by the parties’ course of conduct.” The court concluded that factual issues remained regarding whether the parties had waived the contractual writing requirement through their conduct, precluding summary judgment.

On Tekton’s cross appeal, the appellate court also affirmed the discharge of the mechanic’s lien, holding that Tekton’s explanation of “inadvertent inclusions” without further supporting evidence was insufficient to rebut the showing that the lien had been willfully exaggerated.

Comment – Although written notice provisions are intended to protect the parties by creating a clear paper trail for potential disputes, parties remain free to chart their own course outside the strict language of the contract. However, when a dispute later arises, parties who ignored the contract’s procedural requirements during the project cannot realistically expect a court to enforce those same provisions simply because doing so has become advantageous.

Contractors should note that this decision involved two private entities. A very different outcome may have resulted had the owner been a public entity. Public owners benefit from statutory requirements mandating strict compliance, and courts are generally far less willing to depart from contractual requirements because the doctrine of equitable estoppel ordinarily does not apply against municipalities. The underlying public policy is to protect taxpayer dollars.

To best protect their contractual rights, contractors should follow the notice provisions contained in their contracts whenever possible and consult experienced construction counsel when disputes arise. One final reminder from this case remains unchanged: exaggerating a mechanic’s lien is still a very bad idea.

About the authors: Thomas H. Welby, an attorney and licensed professional engineer, is General Counsel to the CIC and the BCA and is the Founder and Senior Counsel of the law firm Welby, Brady & Greenblatt, LLP, with offices throughout the Tri State Region. Gregory J. Spaun, General Counsel to the Queens and Bronx Building Association and a partner with the firm, co authors this series.

Published: August 11, 2026.