Issue Of Fact Existed As To Sufficiency Of Default Notice Based On Parties’ Discussions

Posted: November 7, 2025 / Written by: Jeffrey M. Eilender, Joshua Wurtzel, Channing J. Turner, Samuel L. Butt, Thomas A. Kissane / Categories Commercial, Summary Judgment

Issue Of Fact Existed As To Sufficiency Of Default Notice Based On Parties’ Discussions

On October 10, 2025, Justice Andrea Masley denied plaintiff’s motion for partial summary judgment on its claim for wrongful termination in Pizzarotti, LLC v. FPG Maiden Lane, LLC, Index No. 651697/2019. The action arose from a construction project on Maiden Lane in New York City. Pizzarotti asserted that its termination from the construction project was wrongful because it was not provided with a meaningful opportunity to cure. The Court explained:

Pizzarotti argues that it was not apprised of the conditions it needed to cure. It asserts that the Notice of Default merely regurgitates the language of Section 14.2.1 of the Agreement which lists the causes for which FPG could terminate the Agreement. The Notice of Default provides,

“[a]ccordingly, pursuant to Article 14.2 of the Construction Contract, Owner hereby gives notice that Contractor is in default due to its material breaches, including, without limitation, as follows: (1) Contractor's failure to conform to the Construction Contract Schedule, (2) Contractor's refusal and failure to supply enough properly skilled workers or proper materials, (3) Contractor's failure to make payments to subcontractors for materials or labor in accordance with Contractor's respective agreements, (4) Contractor's failure to properly coordinate the work of its subcontractors, (5) Contractor's failure to properly oversee, supervise, coordinate, manage and staff the Project, (6) Contractor's failure to buy-out the required trades on a timely basis, and (7) Contractor disregarding laws, rules and regulations, including numerous site safety violations by Contractor and its subcontractors.” (NYSCEF 248, Notice of Default at 3.)

A notice to cure is sufficient when it informs the recipient of the condition which the other party wished to have cured. (Chinatown Apts., Inc. v Chu Cho Lam, 51 NY2d 786, 788 [1980].) The court agrees that this language essentially mimics the terms of the Agreement, and on its face, does not provide detail as to what exactly needed to be cured. However, FPG raises an issue of fact as to the sufficiency by submitting evidence that the parties had been discussing the conditions giving rise to the Notice of Default for several weeks prior to the issuance of the Notice of Default. (See NYSCEF 300, Pizzarotti Letter to Fortis [February 13, 2019]; NYSCEF 301, Fortis Letter to Pizzarotti [February 17, 2019]; NYSCEF 302, Fortis Letter to Pizzarotti [February 20, 2019]; NYSCEF 306, PowerPoint Presentation [March 5, 2019 Meeting] [addressing Pizzarotti’s Failure to Perform].)

The purpose of a Notice of Default/to Cure is just that, give notice of the issues that have given rise to a default and allow for them to be cured. However, here, there is evidence that Pizzarotti was already on notice and well aware of the ongoing issues regarding its performance on the Project. “With respect to the adequacy of notice, the appropriate test is one of reasonableness in view of the attendant circumstances.” (Hughes v Lenox Hill Hosp., 226 AD2d 4, 18 [1st Dept 1996].) Thus, it seems most appropriate for the trier of fact to determine whether the Notice of Default was lacking the requisite detail in light of the circumstances that the parties were engaged in discussions about the issues with Pizzarotti’s performance for weeks prior.

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