notice of claim – Duane Morris Construction Law

February 9, 2026February 9, 2026 by Jose A. Aquino

Appellate Court Reinforces Strict Compliance with Statutory Notice‑of‑Claim Deadlines in Contract Disputes

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.

June 28, 2016 by Richard P. Dyer

No-Prejudice Standard For Application Of Public Construction Contract Notices Now Required by New York

New York’s State Legislature has just passed a bill that would require a no-prejudice standard be applied in determining the application of notice provisions in public construction contracts. [1]

The bill amended current statutes [2] so as to require that unless the public owner can show they have suffered material prejudice as a result of a contractor’s (or/and subcontractor’s) failure to provide timely notice, rights are not barred. If the required notice is received more than 180 days after the time required under the contract, the burden to establish no-prejudice shifts to the contractor/subcontractor.

The Legislature Memo prepared to explain and support the bill referred to current notice provisions as one-sided and unfair “gotcha” provisions. The Memo further contended that some public owners were getting “free work” when contractors or subcontractors are barred from pursuing claims due to non-compliant notices.

Another significant element of the bill appears in the definitional section where it is provided that a “public owner’s actual knowledge of the events in question shall preclude a claim of material prejudice due to any lack of notice.” Some city and state contracts often specifically provide that actual knowledge cannot relieve contractors of the strict requirements of the notice provisions.

The bill will not become effective, however, until 180 days after it is signed by the Governor and becomes law and then only as to contracts awarded after that date.
The text of the bill is here .

1. The bill is A10136 and S6906 which passed on June 18, 2016.
2. The bill amends the Public Authorities Law, the General Municipal Law, the Public Service Law and the State Finance Law.

December 19, 2014February 2, 2015 by Jose A. Aquino

New York Public Authorities Law Amended To Establish That The Time To File A Notice Of Claim Against The NYC School Construction Authority Is To Commence At “Denial” Of Claim, As Opposed To “Accrual” Of Claim

On December 17, 2014, New York Governor Cuomo signed into law a bill to amend the New York Public Authorities Law, in relation to contractual claims and actions against the New York City School Construction Authority (“SCA”). The amendment adds an additional sentence to §1744(2) of the Public Authorities Law to provide that in the case of an action or special proceeding for monies due arising out of contract, accrual of such claim shall be deemed to have occurred as of the date payment for the amount claimed was denied.

Public Authorities Law §1744(2) is problematical to contractors engaged on SCA projects due to the three-month filing period from the “accrual of claims.” Courts have interpreted the three-month period to commence when the contractor’s damages are “ascertainable,” and “ascertainable” has been interpreted to mean “once the work is substantially completed or a detailed invoice of the work performed is submitted.” See C.S.A. Constr. Corp. v. NYC School Constr. Auth., 5 N.Y.3d 189, 800 N.Y.S.2d 123 (2005).

The failure to have a clear and precise point that determines when a claim accrues has led many contractors to lose a claim before it was denied by the SCA, or even before a contractor knew that the SCA disputed its claim. The purpose of the amendment is to establish an unambiguous point in time for the filing of a notice of claim against the SCA. Accordingly, the amendment establishes the accrual of a claim for notice of claim purposes as the point at which the claim is denied. The amendment will prevent the unintentional and unfair waiver of claims, and will reduce paperwork for both the SCA and its contractors.

The statute as amended brings §1744 of the NY Public Authorities Law into conformity with the similar notice of claim provisions of §3813 of the NY Education Law. Under §3813 of the Education law, the accrual date on any action or proceeding against a school district arising out of a contract shall be the date when payment was denied.

The amendment is effective only for SCA contracts signed on or after Dec 17, 2014. The text of NY Public Authorities Law § 1744(2) as amended can be seen here.

May 30, 2012July 29, 2014 by Richard P. Dyer

Owner’s Claim For Defective Work Tripped Up By AIA’s Notice Of Claim Requirement

Notice of claim requirements in construction contracts are standard and often the cause of bad news to contractors pursuing claims for additional costs. However, these clauses can be, though not always, two-way streets. As a reminder to owners that notice of claim requirements under the AIA General Conditions apply equally to owners as to contractors, a trial court in New York recently dismissed a claim for defective work against a plumbing contractor because it was not the subject of a previous notice of claim.

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