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Dispute over contract with no clauses

New YorkConstruction ContractDefectsPayment Disputes

I own a commercial property and had approximately 60k worth of improvement done on it last year. There was no contract except for a signed proposal which includes only a general list of work to be done and total dollar amount. There is no clarification about time frame for work to be completed, expected payments, etc. Contractor used what appears to not be exterior grade hardware on my ADA railing on stairs and ramp. Within days of install the screws and strap begin rusting as its winter. I reported this to the contractor and he says he will fix it. He sends a guy who replaces only a handful of screws leaving the majority still rusting, along with the straps. I had told contractor for two months that the final payment would not be made until work was completed. Final invoice was sent out in January. I wrote a response again asking for proper materials to be used and then radio silence for 5 months. I again stated I would not pay until the work was completed (ie. exterior hardware used) and their response was to threaten to sue. My question is, what are the implied causes in this “contract”? Did they breech it for not finishing the work? Did I for non-payment? What obligation do either of us have here?

1 reply

Jul 1, 2020
Even if the contract was extremely simple, contractors generally have an implied warranty of workmanship. Meaning, even if the contract doesn't include warranty or workmanship language, the contractor is still legally required to perform adequate work. In fact, in New York, not having warranty provisions in the contract might actually create more protection for a project owner, as discussed in this article: Construction Warranties in New York. Sometimes Less is More. So, an owner who's had defective work done should be able to pursue claims against their contractor if the work isn't satisfactory. Further, if the contractor didn't provide what was promised under the contract, claims like breach of contract could be on the table, too. On the other hand, withholding payment might also result in a breach of the contract (and often does). Still - if the work wasn't properly done, withholding payment might be warranted and a contractor's claims could fail. Ultimately, that'd be up to the court to determine (if things got to that point). It's perfectly reasonable for an owner to demand repairs when their contractor hasn't properly performed their work. At the same time, it's also common for a contractor to become frustrated about nonpayment - and often warranted! So, negotiating new payment terms and tying them to the contractor correcting their work might be a useful way forward. And, if it looks like legal action is coming, or if you want help negotiating with the contractor, consulting with a New York construction lawyer could help. You can find one here: Find a New York Construction Lawyer. Regarding breach, this article should be useful: Construction Contracts | A Deep Dive on Breach of Contract.
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