General – Duane Morris Construction Law

July 16, 2026July 16, 2026 by Jose A. Aquino

Beyond Construction: Second Department Authorizes Access to Adjoining Property for Post-Completion Remedial Work

The New York Appellate Division, Second Department’s recent decision in Matter of QB Development Owner, LLC v. Hensley, confirms that RPAPL 881 authorizes court-ordered access not only for active construction activities but also for post-construction remedial work necessary to complete a project and obtain a certificate of occupancy. The decision represents a significant development in the Second Department’s evolving RPAPL 881 jurisprudence. While the Court reaffirmed the familiar equitable principles governing applications for temporary access licenses, the decision is noteworthy because it applies those principles in the post-construction context, confirming that RPAPL 881 remains available when temporary access is necessary to remedy construction-related conditions and satisfy regulatory requirements.

The dispute arose after construction of the petitioner’s project was substantially complete. During construction, the parties entered into a license agreement permitting the developer to access the adjoining property, but that agreement eventually expired. Thereafter, the developer discovered that a portion of a concrete slab encroached onto the neighboring property. When the adjoining owners refused access to remove the encroachment, the New York City Department of Buildings advised that it would not issue a certificate of occupancy until the condition was corrected. After the parties were unable to negotiate a new license agreement, the developer commenced an RPAPL 881 proceeding seeking temporary access to the adjoining property to remove the encroachment.

Affirming the Supreme Court’s order granting the license, the Second Department reiterated that RPAPL 881 requires courts to balance the competing interests of the parties by considering, among other things, the necessity and scope of the requested access, the duration of the intrusion, the availability of reasonable alternatives, the public interest in completion of the project, and the protections afforded to the adjoining owner. Applying those principles, the Court concluded that the proposed work could be completed in approximately three days without jeopardizing either structure, was necessary to obtain a certificate of occupancy, and adequately protected the adjoining owners through a license fee, insurance coverage, and compensation for any resulting damage.

QB Development Owner represents a continuation of the Second Department’s increasingly pragmatic interpretation of RPAPL 881. In Matter of Queens Coll. Special Projects Fund, Inc. v. Newman, the Court emphasized that temporary licenses should be granted where necessary to facilitate construction while protecting adjoining owners through reasonable conditions. The Court further refined that framework in Matter of Voron v. Board of Managers of the Newswalk Condominium, identifying the principal factors governing the equitable balancing analysis, including the necessity of the requested access, the duration of the intrusion, available alternatives, the public interest in completion of the project, and financial protections for the neighboring owner. QB Development Owner does not change those principles; rather, it demonstrates that they apply with equal force when access is required to remedy a construction-related condition after substantial completion of the work.

The Court also rejected the adjoining owners’ argument that the controversy became academic upon expiration of the parties’ prior license agreement. Consistent with its reasoning in Franklin Carroll, LLC v. Carroll Development Plaza, LLC, the Court concluded that changing circumstances do not necessarily moot an RPAPL 881 proceeding where access remains necessary to complete the project. The decision recognizes that unforeseen issues may arise after construction, requiring temporary access even after an original license agreement has expired.

QB Development Owner reinforces the expansive reach and equitable nature of RPAPL 881 proceedings. The decision confirms that the statute is not intended merely to facilitate construction activities but to provide courts with sufficient flexibility to resolve access disputes whenever temporary entry is necessary to complete lawful improvements or satisfy regulatory requirements. Construction projects often require additional work after substantial completion. Corrective work, punch-list items, Department of Buildings requirements, and the removal of encroachments may all require temporary access to adjoining property. This decision confirms that RPAPL 881 remains available in those circumstances, provided the requested access is necessary, limited in scope, and includes appropriate protections for the adjoining owner.

Together with Queens College, Voron, and Franklin Carroll, QB Development Owner further confirms the Second Department’s view that RPAPL 881 is a flexible equitable remedy that permits necessary construction and post-construction work while protecting adjoining owners through appropriate court-imposed conditions. For developers, the decision provides assurance that RPAPL 881 remains available when unforeseen conditions discovered after substantial completion require temporary access to neighboring property. For adjoining owners, the decision reinforces that courts will continue to balance competing interests through license fees, insurance requirements, and compensation for any resulting damages.

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.

June 17, 2026June 17, 2026 by Duane Morris

Duane Morris Construction Group Ranked by The Legal 500

The Duane Morris Construction Group was ranked by The Legal 500 in Real Estate: Construction (including construction litigation), and Partner Brian Shue was named as a “Next Generation Partner.”

June 4, 2026June 9, 2026 by Duane Morris

Chambers USA Recognizes Duane Morris Construction Group and Attorneys

Duane Morris is pleased to announce that Chambers USA has once again nationally recognized our Construction Group as well as construction attorneys across the country.

Here’s what our clients are saying about our construction attorneys:

“Duane Morris has an extremely well-rounded construction team in terms of knowledge and experience.”
“They have streamlined our ability to slice through the nonsense and get straight to the issues at hand.”
“Everyone I have worked with at Duane Morris has deep experience on relevant matters and are all very knowledgeable about the industry.”

Nationwide

Construction

New York

Construction

Pennsylvania

Construction

Illinois

Construction

Austin Attorneys

Tracy L. McCreight: Construction

Chicago Attorneys

Jeffrey L. Hamera: Construction

Charles B. Lewis: Construction

Miami Attorneys

Scott D. Kravetz, P.A.: Construction

New York Attorneys

Mark Canizio: Construction

Frederick Cohen, Construction

Allen J. Ross: Construction: Mediators

Brian A. Shue: Construction

Kenneth H. Lazaruk: Construction and Construction: Mediators

Philadelphia Attorneys

Patrick J. Kearney: Construction

May 29, 2026May 29, 2026 by Jose A. Aquino

Court Says Piggybacking on Another Government’s Contract Is Not a Substitute for Competitive Bidding

The term “piggybacking” in public contracting refers to a municipality using another government’s existing contract instead of running its own competitive bid. In Daniel J. Lynch, Inc. v. Board of Education of the Maine‑Endwell Central School District, the New York Appellate Court made it clear that this shortcut has strict limits. The court held that a school district cannot award a public‑works construction contract by piggybacking through a cooperative purchasing system. Under New York’s General Municipal Law, piggybacking is permitted only for buying goods and related services, not for construction or renovation projects. The decision underscores that cooperative purchasing is a narrow exception, not a substitute for the competitive bidding requirements that govern public‑works contracts.

The school district had finished phase one of a multiyear capital project. When phase two—HVAC upgrades and classroom construction—was delayed by the State Education Department, the district chose not to wait. Instead of putting the HVAC work out for competitive bidding, it turned to a “piggyback” contract through The Interlocal Purchasing System (TIPS). TIPS, a Texas‑based cooperative formed in 2002, allows municipalities nationwide to use contracts and pricing it has already secured. Using its preapproved vendor list, TIPS matched the district with a contractor based on pre‑negotiated pricing.

Local contractors challenged the award, claiming the district sidestepped the competitive bidding rules required under the General Municipal Law. The Supreme Court agreed, ruling that the district’s use of TIPS amounted to improper piggybacking for a public works project. While the court allowed the contractor to finish the HVAC work already underway, it prohibited the district from relying on TIPS or similar cooperatives for the remaining phases of the project.

The Appellate Division affirmed the ruling. It emphasized that General Municipal Law § 103(16)—the statute permitting piggybacking—covers only purchases of “apparatus, materials, equipment or supplies” and related installation or maintenance services. It does not mention public works contracts. As the court explained, leaving out public works contracts from the statute shows that the Legislature did not intend to exempt them from competitive bidding. The legislative history supported this point: when the provision was enacted, lawmakers described it as a tool for cooperative purchasing, not a way to award construction or renovation projects.

The court also dismissed the contractor’s appeal for lack of harm, since none of the relief sought against the contractor—such as repayment, an injunction, or fees—was granted. The contractor’s claim that the ruling might affect its future business was too speculative to give it standing. The court’s decision is clear: cooperative purchasing cannot be used to avoid competitive bidding for public works. It is a limited exception meant only for buying goods and related services.

April 29, 2026April 29, 2026 by Duane Morris

The Invisible Pile

Five Construction Risks that Rarely Make it onto the Agenda

By Owen Newman

Every construction GC has three piles on their desk. A speaker at an ethics CLE early in my legal career named them.

The small one up front: the work they love. The medium one in the corner: the work they tolerate. And the large one accumulating out of sight — the work they avoid. He called that one the malpractice pile.

He was right to name it. The work you avoid has a way of coming due. But the image stayed with me for a different reason.

After eight years of legal practice, and before joining my current firm, I spent six years at Black & Veatch — in project risk management, as a project manager on a power generation megaproject, and as Regional Director for GCC Power Generation. Across those roles, the avoidance pile, while serious, was never the most dangerous one.

April 29, 2026April 29, 2026 by Duane Morris

The Briefing Outside Counsel Owes You Before the CFO Meeting

By Owen Newman

Building on Adrian Moffatt’s “The GC Communication Guide: CFO Edition”

General Counsel are lawyers, but they are also executives — and like any executive, they have clients of their own. The CEO, the CFO, the Board: stakeholders who measure risk in dollars and quarters, not legal standards and motion deadlines. What makes perfect sense in the legal department’s conference room doesn’t always translate to the boardroom. Bridging that gap is one of the GC’s most demanding roles — and in some ways, harder than what outside counsel face. The GC doesn’t get to pick her clients.

April 29, 2026April 29, 2026 by Duane Morris

Construction Maintenance Checklist: A Practical Guide for Owners and Contractors

By Owen Newman

Here is a contract maintenance checklist built around the same idea as my last post: the wall is strongest when both parties show up and walk it together. From project kick-off to senior leadership check-ins, the checklist provides jumping-off points for developing agendas and guiding purposeful communication between owners and contractors together.

April 21, 2026April 21, 2026 by Jose A. Aquino

Oral Construction Agreements and the Limits of the Statute of Frauds at the Pleading Stage

The appellate decision in Landscape Details, Inc. v. Bernard is a reminder that courts are hesitant to dismiss claims at an early stage. The case involved a contractor who performed a landscaping project for a homeowner who was also the contractor’s employee. The parties allegedly agreed that the contractor would be paid through the employee’s bonuses, with any unpaid balance becoming due if the employee left the company before the balance was paid. When the employment ended and no payment was made, the contractor sued to recover the unpaid balance.

The defendant moved to dismiss, arguing that the claim was barred by the statute of frauds because the agreement was oral and could not be performed within one year. The court rejected that argument, reasoning that the statute of frauds applies only if the agreement could not be completed within a year. Since the alleged agreement provided that the balance would become due upon the employee’s termination—a contingency that could occur within a year—the court concluded that this possibility was sufficient to defeat the statute‑of‑frauds defense at the pleading stage.

The defendant also argued that the agreement was for the sale of goods over $500 and therefore unenforceable without a writing under the Uniform Commercial Code. The court also rejected that argument, noting that even if the UCC applied, there is an exception where goods are received and accepted. The court found that the contractor’s allegations were sufficient to fall within that exception.

The decision holds that oral agreements in a construction setting may be enforceable where performance is alleged, and that statute‑of‑frauds defenses do not warrant dismissal at the pleading stage when the agreement could be performed within one year or falls within a recognized exception. The decision also underscores that, on a motion to dismiss, the court does not assess the ultimate merits but examines only whether the plaintiff has stated a viable claim; if the alleged facts, accepted as true, fit within any cognizable legal theory, the action survives dismissal.

April 13, 2026April 14, 2026 by Duane Morris

Balancing the Right to Repair With Evidence Preservation in Construction Defect Litigation

Anna Spicer co-authored the Construction Executive article “Balancing the Right to Repair With Evidence Preservation in Construction Defect Litigation.”

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.

Read the full article on the Construction Executive website.

April 7, 2026April 7, 2026 by Duane Morris

Spring Mending-Time

What Robert Frost understood about construction contracts
Every spring, two neighbors walk a wall.

By Owen Newman

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.