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THE PARTIES TO THE CONSTRUCTION CONTRACT DID NOT COMPLY WITH THE FORMAL REQUIREMENTS FOR CHANGE ORDERS; THEREFORE THE FORMAL REQUIREMENTS WERE WAIVED AND THE FAILURE TO COMPLY WAS NOT A BREACH (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined the failure to follow the construction contract provisions for change orders was not a breach of contract:

… [T]he parties’ lack of compliance with the change order procedure contained in the contract did not constitute a breach. … [T]he trial evidence established that the parties used informal text messages and emails in furtherance of project changes rather than following the formal, detailed change order process set forth in the contract. … [A] written change order requirement included in a construction contract “is not applicable where, as here, the conduct of the parties demonstrates an indisputable mutual departure from the written agreement and the changes were clearly requested by plaintiff and executed by defendant” …  Thus, the record amply demonstrates that the parties “waived their contractual right to insist upon strict compliance” with the change order condition … . 107 S. Albany St., LLC v Scott, 2022 NY Slip Op 07276, Third Dept 12-22-22

Practice Point: The parities did not comply with the formal change order requirements in the construction contract. Therefore the formal requirements were waived and failure to comply was not a breach of contract.

 

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