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DEFENDANT BREACHED THE CONTRACT BY FAILING TO COMPLY WITH THE NOTICE-TO-CURE PROVISION BEFORE TERMINATING IT; THE REASON FOR TERMINATION, FAULTY WORK, WAS NOT EXEMPT FROM THE NOTICE-TO-CURE REQUIREMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined defendant breached the contract by failing to comply with the notice-to-cure provision before terminating it. Defendant general contractor (Borough) subcontracted with plaintiff to perform steel work at a residential development project. The subcontract required plaintiff to supply and install steel for excavation support and the frame of the building, as well as provide a full-time safety manager and procure permits for a crane:

… [P]laintiff alleges that defendant failed to comply with the notice-to-cure provision before terminating the contract, gives us the opportunity to address the strict nature of these types of provisions and the very rare instances when they can be ignored. Defendant general contractor terminated the steel work subcontract it had entered into with plaintiff based on what was essentially a claim that plaintiff provided faulty work. … [D]efendant was obligated to give plaintiff the 10-day notice to cure provided in the contract … [.] [F]aulty work does not fall within the very limited and rare circumstances when the provision can be dispensed with, namely, where the other party expressly repudiates the contract or abandons performance or where the breach is impossible to cure. * * *

Borough sent plaintiff a written “notice of termination” stating that the subcontract would be terminated in three days from the date of the letter and that plaintiff was in default by “failing to provide sufficient manpower [] [and] failing to meet the schedule, safety regulations and qualified workmanship for the Project.” The letter further stated that plaintiff “failed to respond or delayed response to requests for crane usage” and “has delayed the performance and completion of the work.” * * *

Nothing in the record supports the conclusion that the plaintiff repudiated or abandoned the contract or could not have commenced and continued correction of the steel frame and other alleged safety violations in the 10-day period following receipt of notice to cure. … [T]he alleged default, faulty steelwork, constitutes nothing more than defective performance, which is “the very situation to which the cure provision was intended to apply” … . East Empire Constr. Inc. v Borough Constr. Group LLC, 2021 NY Slip Op 05455, First Dept 10-12-2​1

 

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