Every major construction project comes with risk, whether it’s a warehouse build, a multifamily development or a major renovation. Parties tend to be aligned when things are proceeding as planned. But when something goes wrong—cracked concrete, water intrusion, systems that don’t perform as expected—those interests can quickly diverge.
Hadrian’s Wall in Northumberland. A two-thousand-year-old UNESCO World Heritage Site with superb views and excellent walking.
Robert Frost popularized the now-famous phrase “Good Fences Make Good Neighbors” in his poem, Mending Wall, more than a century ago. The neighbors in his poem would meet each spring to walk together along the wall, each replacing the stones that have fallen on his side.
Frost’s speaker is skeptical and asks why the wall needs to exist at all: “He is all pine and I am apple orchard. My apple trees will never get across and eat the cones under his pines.” But the neighbor is unmoved. “Good fences make good neighbors.”
I have frequently used the Good Fences analogy in discussions about how well-developed contracts may improve or at least preserve owner/contractor relationships, and I am not abandoning the premise. But just as Frost’s poem is not really about the quality of the fence, the lesson here is not about the quality of the contract. It is about the ritual of maintaining it. Both neighbors show up. Both walk the fence. The wall gets mended not because one man decides it should be, but because both agree it is worth maintaining.
“Something there is that doesn’t love a wall, That sends the frozen-ground-swell under it, And spills the upper boulders in the sun; And makes gaps even two can pass abreast. …
No one has seen them made or heard them made, But at spring mending-time we find them there.”
Most construction contracts are negotiated carefully, between sophisticated parties, and then filed away. The project mobilizes. The work begins. Owner and contractor go back to their corners, focus on their work, and assume the other side is doing the same.
This works fine. Until winter comes.
In construction, winter comes in many forms: change orders, delayed performance, and supply chain disruptions. None of these are truly unforeseen events. Anyone who has managed or advised on a large construction project knows that change orders will come, that schedules will slip, that conditions will differ from the drawings.
When spring comes, both parties reach for the contract. And what they usually find are the gaps that have formed. Notice provisions may have gone unobserved. Force majeure language may not account for tariff-driven material escalation. Prior schedule or productivity impacts may not have been substantiated. Project challenges like these, if left unaddressed, can leave gaps that undermine the contract’s ability to make “good neighbors.”
“And on a day we meet to walk the line And set the wall between us once again. We keep the wall between us as we go. To each the boulders that have fallen to each.”
Frost’s mending ritual is not complicated. What makes it work is not the sophistication of the process — it is the discipline of showing up. Both neighbors. Together.
Maintaining a construction contract requires the same discipline.
In practice, that means regular, deliberate conversations between owner and contractor about where the project stands and whether they are meeting the contract’s requirements. It means treating the change order process as a shared obligation — documented as it happens — rather than an administrative nuisance. It means revisiting the contract together when circumstances change materially. And perhaps most importantly, it means having difficult conversations up front rather than waiting to see what happens down the line.
The parties who do this — who are diligent in maintaining the contractual relationship together — are far less likely to end up in a courtroom. Not because their projects are free of problems, but because they addressed the problems while they were still problems that could be resolved by neighborly cooperation rather than a legal battle.
“Why do they make good neighbors? Isn’t it Where there are cows? But here there are no cows. Before I built a wall I’d ask to know What I was walling in or walling out, And to whom I was like to give offense. Something there is that doesn’t love a wall, That wants it down.”
Frost’s speaker remained skeptical about the need for a wall and in part, worried about giving offense—perhaps about what the wall said about the relationship between neighbors. It is a reasonable concern. In construction, it frequently manifests as a reluctance to send formal notice, to document a change order while the relationship is still warm, or to insist on contract compliance when the other party is struggling. The instinct to avoid offense is understandable. The cost of acting on it is not.
Clients frequently lament that they avoided providing notice or addressing change as a gesture of good faith, believing both parties would “be fair to each other in the end.” But the paradox is this: the gesture intended to preserve the relationship and avoid offense is often what damages it. When a party withholds notice or stays silent about a developing problem, they are not protecting the partnership — they are building a private version of events that the other party knows nothing about. When spring comes, the relationship fails not because the change order was too large or the delay too long, but because one party knew something the other did not and said nothing. Trust is not preserved by avoiding difficult conversations. It is built by having them.
Good fences make good neighbors. Not because they signal distrust, but because they give both parties a shared structure for managing the inevitable winter events and avoiding the accumulation of gaps.
The best construction contracts work the same way. They are not statements of distrust. They are the shared understanding by which the parties can avoid or mitigate impacts as they occur. So long as both parties show up and walk the line together.
Owen Newman is a construction and energy litigator and international arbitration specialist at Duane Morris LLP in Chicago. Owen previously spent six years managing EPC projects and leading commercial operations for a global engineering and construction contractor—which is where he first learned to walk the line.
In Best Work Holdings (New York), LLC v. Ma, a recent decision from the New York Appellate Division, First Department, the court examines how promissory‑estoppel and unjust‑enrichment claims are evaluated when construction work is performed without a written contract.
Plaintiff building owner accused defendants of participating in a fraudulent contracting scheme. Defendant Li responded with counterclaims, asserting that he performed legitimate preparation work for the building’s renovation because he was told he would be reimbursed. Li alleged that the head of asset management for the owner’s parent company promised him that “if Li performed preparation work… he would be reimbursed the costs for material, labor, equipment, and services.” Li also claimed that he relied on this assurance because of his prior working relationship with the project manager, noting that he had previously managed projects “without a written contract.”
The court held that these allegations were enough to state a claim for promissory estoppel. At the pleading stage, the question is not whether Li will ultimately prove his reliance was reasonable, but whether the allegations, taken as true, are plausible. The court emphasized that the reasonableness of reliance “is an issue for the trier of fact” and that Li is entitled to favorable inferences because his reliance was not “patently unreasonable on its face.”
The court also reinstated Li’s unjust enrichment claim. Li alleged that he spent $200,000 on preparation work and that the building owner benefited from that work without paying for it. The court found these allegations sufficient, explaining that Li claimed the owner “was enriched by Li’s preparation work” and that it would be “against equity and good conscience” for the owner to retain that benefit without payment.
Although the counterclaims lacked detail, the court concluded that they were sufficiently specific to withstand a motion to dismiss. The decision underscores that quasi‑contract claims may proceed even without a formal agreement when a contractor alleges a pattern of similar prior dealings and significant out‑of‑pocket expenditures.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
Duane Morris has been named a finalist for the 2026 Florida Legal Awards in the Litigation Departments of the Year, Construction category. Honorees were selected by the Daily Business Review and Law.com editorial staff with input from distinguished members of the Florida legal community.
The New York Appellate Division, Second Department, recently reaffirmed that notice‑of‑claim requirements can bar contract claims when statutory deadlines are missed. In Custom Crafted Management Solutions, Inc. v. Elmont Fire District, the court dismissed a breach‑of‑contract action for failure to timely file a notice of claim as required by N.Y. Town Law § 180.
The dispute arose from four contracts that the Elmont Fire District entered into with four separate vendors. Each vendor subsequently assigned its rights under its respective contract to the plaintiff. On December 27, 2022, the plaintiff issued four invoices demanding payment, each with a due date of January 31, 2023. The Fire District did not make payment by the deadline. More than eight months later, the plaintiff filed a notice of claim by hand on October 2, 2023, seeking the amounts allegedly due, and mailed it on October 10, 2023. The plaintiff commenced the action on March 3, 2024, asserting breach of contract and related claims.
The Fire District moved to dismiss the complaint, on the ground that the plaintiff failed to file a notice of claim within six months of the accrual of its causes of action, as required by applicable statute, Town Law § 180. The trial court found that factual questions existed regarding when the claims accrued and denied the motion. On appeal, the Second Department reversed.
The appellate court emphasized that Town Law § 180 imposes a condition precedent that no action may be maintained arising out of a contract unless a verified written claim is filed within six months after the cause of action accrued. The court stated that “[c]ourts have no authority to disregard lack of compliance with such a provision,” making clear that the statutory notice of claim provisions is mandatory, not discretionary.
The court explained that a contractor’s claim accrues when its demand for payment is rejected. Plaintiff set January 31, 2023, as the payment deadline. The claim accrued when the Fire District did not pay by the deadline. The six‑month notice‑of‑claim period therefore expired on or about July 31, 2023. Because the plaintiff did not serve its notice of claim until October 2023—more than eight months after accrual—the appellate court reversed the trial court and granted the Fire District’s motion to dismiss. The filing of the notice of claim was untimely as a matter of law.
This decision highlights how strictly courts enforce statutory notice‑of‑claim requirements. Even where the underlying contract claims may appear straightforward, the failure to strictly comply with mandated condition precedent can be fatal.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
Courts and legislatures in many states require plaintiffs to file an expert affidavit or certificate of merit at the beginning of a malpractice case, including claims against architects, engineers, and other design professionals. These requirements often function as early gatekeeping tools, allowing defendants to seek early dismissal. A recent U.S. Supreme Court decision, however, may limit the impact of those statutes in federal court and change litigation strategy in design‑professional cases.
As my Duane Morris colleagues explained in an Alert on January 22, 2026, the U.S. Supreme Court in Berk v. Choy ruled that state affidavit‑of‑merit requirements do not apply in federal court, and that reasoning is not limited to medical malpractice cases—it may also affect similar rules for other licensed professionals. This means that people bringing malpractice claims against architects and engineers in federal court may no longer need to file the expert affidavit that many states require at the start of a case, making it easier for those claims to move forward and removing an early‑dismissal tool for defendants. It may also change how strict filing deadlines, like statutes of repose, work in federal court, because a case is considered started as soon as the complaint is filed. The decision makes federal court a more appealing option for plaintiffs and shifts how design‑professional malpractice cases are handled.
For design professionals, insurers, and others in the construction industry, this shift raises important considerations. Removal to federal court may now eliminate a key procedural defense that would otherwise be available in state court. As courts begin applying Berk beyond the medical‑malpractice context, parties should expect meaningful differences between state and federal practice in professional‑liability cases and adjust their litigation strategies accordingly.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
Discourse surrounding force majeure clauses skyrocketed in the wake of COVID-19. Parties to contracts were confronted with the uncertainty of promising future performance when the future was far from certain. In particular, construction contracts felt the impact of this uncertainty through price escalations, tariffs, material scarcity, price gouging, supply chain issues, labor shortages, and myriad other problems. Construction executives must recognize how future uncertainties can affect their business in order to move into the future equipped with knowledge to address critical problems from a position of understanding. Uncertainty is mitigated by recognizing the contractual mechanisms specifically designed to address it, such as force majeure clauses and the law of impossibility. Read the full article on the Commercial Construction & Renovation website.
A recent decision from the New York Appellate Division, Third Department, reinforces how strictly New York courts apply the trust-fund rules of Article 3-A of the Lien Law, particularly when settlement funds are involved. In L.C. Whitford Co., Inc. v. Babcock & Wilcox Solar Energy, Inc., the Court held that a general contractor could not use settlement proceeds to reimburse itself for project costs it claimed to have advanced, even where those advances were used to pay subcontractors.
The case arose out of several solar construction projects that ended in disputes and delays. The project owners and the general contractor ultimately resolved their disputes through a confidential settlement that resulted in a multimillion-dollar payment to the contractor. Subcontractors with pending mechanic’s liens objected when the contractor stated that it intended to apply a portion of the settlement funds to reimburse itself for monies it had previously advanced on the jobs.
The Appellate Division agreed with the subcontractors. The Court concluded that the settlement proceeds were trust assets under Article 3-A because they were paid in connection with contracts for the improvement of real property. Once funds are deemed trust assets, the Lien Law strictly limits how they may be used. For a contractor acting as trustee, those funds must be applied first to pay subcontractors, laborers, and material suppliers.
The contractor argued that it should be allowed to reimburse itself because it had used its own money to pay subcontractors when project funds were exhausted. The Court rejected that argument, emphasizing that the Lien Law does not permit a contractor‑trustee to place itself ahead of unpaid trust beneficiaries. The statutory language governing the use of trust assets “is mandatory.” Unlike an owner, a contractor has no statutory right to apply trust funds toward its own “costs of improvement.” Until all valid trust claims are satisfied, the contractor has no beneficial interest in the trust funds at all.
Because the proposed reimbursement would have diverted trust assets away from subcontractors with unresolved claims, the Court held that it would violate the contractor’s fiduciary obligations under Article 3-A. The injunction barring any use of the settlement funds without court approval was therefore properly granted.
The dissent took a different view, reasoning that nothing in the statute prohibits the use of trust assets to reimburse payments made for proper trust purposes before trust assets were available. It cautioned that the majority’s interpretation could discourage contractors from advancing their own funds to keep projects moving when owners fail to pay on time. The majority, however, reaffirmed that Article 3‑A is designed to protect subcontractors first and foremost, even if doing so places the financial risk of such advances squarely on the contractor.
The decision underscores that settlement proceeds from construction projects are not available for contractor reimbursement when trust claims remain unresolved. Contractors who front their own funds do so at their own risk, while subcontractors retain strong protections under Article 3‑A to ensure settlement funds are used exclusively to satisfy trust claims..
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
Strict compliance with notice‑to‑cure provisions is essential in construction contracts, particularly when a contractor seeks to terminate a subcontract for cause. These provisions are designed to ensure that subcontractors receive clear, written notice of alleged defaults and a defined period to cure them before facing termination. Courts have repeatedly emphasized that failure to follow these procedures can make a termination invalid and expose the contractor to liability.
In the recent case of Pizzarotti, LLC v. MDB Development Corp., the New York Appellate Division, First Department, reinforced this principle. The general contractor terminated its concrete subcontractor on May 22, 2018, citing performance failures. The court found the termination invalid because the contractor had not complied with the subcontract’s requirement that termination for cause could occur only if the subcontractor failed to cure a default within five calendar days after receiving written notice. The last correspondence that could arguably qualify as a notice of default was sent on January 31, 2018, identifying incomplete work. In the months that followed, the subcontractor substantially completed much of that work. Later emails and letters did not amount to valid notices of default: a February email confirmed that most problems were fixed and left only minor punch‑list items, while the March and April letters about liens did not start the notice‑to‑cure process, since the contractor removed the liens itself and only mentioned applying back charges. By allowing this time to pass without further notice, the contractor effectively waived its right to terminate based on those alleged defaults.
The court cited Bast Hatfield, Inc. v. Joseph R. Wunderlich, Inc., where a contractor issued a 48‑hour notice but then waited more than a month while the subcontractor corrected deficiencies. When the contractor later terminated without issuing any further notice, the court held that it had waived its right to rely on those defaults. The same reasoning applied in Pizzarotti: delay and informal communications cannot excuse the formal notice required by contract.
The Appellate Division also rejected the claim that the subcontractor abandoned the project. Although its last work on site occurred on February 27, 2018, the subcontractor continued to communicate with the contractor and the engineer of record, expressing readiness to complete remaining items pending direction. These communications demonstrated that the subcontractor had not repudiated the subcontract, and therefore the contractor could not bypass the notice‑to‑cure requirement.
Together, Pizzarotti and Bast Hatfield underscore that termination for cause requires strict adherence to contractual procedures. Contractors who fail to comply risk not only forfeiting their termination rights but also incurring substantial exposure to breach‑of‑contract claims and related liabilities.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
The New York Appellate Division, Second Department, in Nationwide HVAC Supply Corp. v. Mosby, held that an unlicensed home improvement contractor cannot recover damages for breach of contract or foreclose a mechanic’s lien, and therefore dismissed the complaint. The dispute began when Andrew Mosby hired Nationwide HVAC Supply Corp. to install an HVAC system at his home, leading to a mechanic’s lien after payment disagreements. Although the trial court denied Mosby’s motion to dismiss, the appellate court reversed, stressing that Nassau County Administrative Code requires strict compliance with licensing laws. Because Nationwide failed to allege possession of a valid license, it forfeited its right to enforce the lien or seek damages. The appellate court also rejected the argument that reliance on a licensed subcontractor could cure the defect, reaffirming that subcontractor licensing does not substitute for the general contractor’s own compliance. This ruling makes clear that in New York, contractors who lack the required license cannot enforce contracts or liens, even when the work has been fully performed.
