Court Buries Contractor’s Claim Over Lack of Contractual Notice
By THOMAS H. WELBY, P.E., ESQ. and
GREGORY J. SPAUN, ESQ.
We have written on numerous occasions about how a construction contract is meant to define the relationship between the parties, and that absent a provision that violates public policy—such as pay-if-paid, pre-emptive lien waivers, indemnification of a party for its own negligence and more—the contract will be strictly enforced as written.
The provision of these contracts that seems to be invoked most frequently is the provision for delivering notice of claims to the owner for extra, additional, or even delay compensation. In the recent case of Trocom Construction Corp. v City of New York, an appellate court yet again showed us the importance of strict compliance with these contractual notice of claim provisions.
Background
In October of 2008, Trocom Construction Corp. entered into a contract with the City of New York for Trocom to perform the reconstruction of a portion of Fulton Street in Lower Manhattan in connection with the Fulton Transit Center project. The contract contained a provision requiring Trocom to provide the city’s engineer with a notice of claim for any claimed delay impacts within 45 days of the date on which Trocom first incurred damages, and to provide an additional notice with updated details every 30 days thereafter. The contract allowed Trocom to seek an extension of these deadlines, but warned that “on failure of (Trocom) to fully comply with the foregoing provisions, such claims shall be deemed waived and no right to recover on such claims shall exist.” The contract contained similar provisions for other claims, such as unpaid change orders.
During the project, Trocom encountered numerous delays and was required to perform significant additional work above and beyond its original scope. When these claims went unpaid, Trocom commenced a lawsuit against the city, seeking to recover $829,998.82 in unpaid change orders and $1,275,400. in delay damages, amongst other damages.
After discovery, the city moved for summary judgment dismissing Trocom’s lawsuit, alleging that Trocom failed to provide the city with the contractually required notice. While Trocom was constrained to admit that it did not strictly comply with these requirements, it argued that voluminous email correspondence, in person discussions at project meetings, and “thousands of pages of documents (provided) to the Comptroller” adequately advised the city of the details of Trocom’s claims. The city conceded that there were discussions, but argued that the complaints of “general delay,” without specifics, were woefully inadequate to apprise the city of the details of the claims, or substitute for contractual notice.
Decision
The motion court granted the city’s motion, finding that the complaints of general delay, without specifics, were not sufficient, and that it was incumbent on Trocom to “show that a particular delay actually delayed the completion of the project and did not run concurrently with independently caused delays.” The court held that Trocom made no such showing, and had failed to produce documents in response to the Comptroller’s request. The court further held that even if Trocom’s documents did provide specifics, the city was nevertheless entitled to strict compliance with the contractual notice provisions.
About the authors: Thomas H. Welby, Esq., P.E., is General Counsel to the CIC and the BCA and serves as Senior Counsel to the law firm of Welby, Brady & Greenblatt, LLP. Gregory J. Spaun, Esq., is a partner with the firm.
To read their full report, go to www.cicbca.org in the May edition of Construction News published later this month.
Published: May 7, 2025