Where contractor filed suit against subcontractor for breach of contract, the trial court granted the subcontractor’s motion for summary judgment on the issue of time related damages. Other issues in dispute will go to trail. The subcontractor was responsible for installing cast concrete wall panels for student dormitories. The subcontractor began work under subcontract with the prime an entire year before the prime executed a contract with the University/client. Numerous issues caused delay to the project. The subcontractor argued successfully at trial that the Prime failed to manage other subcontractors whose work preceded the Sub’s work, and that this delayed the sub’s ability to complete its work on schedule. It also argued that the Prime failed to facilitate timely approval of the Sub’s submittals and this delayed production of the panels.
The Prime contract had no completion date specified for on of the buildings on the project. The Sub, therefore, argued that time could not be of the essence for that building. The Prime argued that various parts of the subcontract language made time of the essence. It also argued that “one party may unilaterally make time of the essence by giving clear and unequivocal notice that the contract must be performed within a reasonable time”. In this case, the court stated that “the mere designation of a particular date upon which a thing is to be done does not result in making that date the essence of the contract.” The Prime’s argument that the construction schedule included a “desired completion date”, standing alone is insufficient to create a material issue of fact. PikeCompany, Inc. v. Tri-Krete Limited, 772 F.Supp.3d 353 (New York, 2025)
The Prime also argued that even if the Subcontract did not include a time of the essence clause, it could have unilaterally made time of the essence “by giving clear and unequivocal notice that the contract must be performed within a certain reasonable time.” But the record before the Court does not support that Pike gave “clear and unequivocal notice”—rather, as referenced above, “the record before the Court demonstrates that Pike changed the dates for the completion of the wall panel installation.” The court stated that under the language in the Master Services Agreement (MSA) the Prime was required to grant the Sub and time extension to complete the building. The MSA stated:
“Should the Subcontractor be delayed by an act or omission of the Contractor or by any other contractor or subcontractor on the Project or by any cause beyond the Subcontractor’s control and not due to any fault, act or omission on its part, then the time for completion of the work shall be extended for a period equivalent to the time lost by reason of any of the aforesaid causes, but only to the extent an extension of time is actually allowed to the Contractor by the Owner under the terms of the Prime Contract.”
In this case, the court found that the Subcontractor was “actually allowed” an extension to complete the building. The court stated that the Prime’s arguments fail to acknowledge the obvious—that since it had no obligation to deliver Building D by August 31, 2017, there was no delay in the completion of that building, and therefore no associated damages. The court, therefore, found that the Sub was entitled to summary judgment on this issue.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with ConstructionRisk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk Report, Vol. 27, No. 6 (October 2025).
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