Claim based on verbal request denied

Washington Square Park. Image Credit: CityLaw.

Construction Company sought additional compensation related to the reconstruction of Washington Square Park. In May 2015, the Parks Department contracted with SH5 Construction Corp. to reconstruct perimeter sidewalks around Washington Square Park, Manhattan. SH5 alleged a Parks employee gave it verbal instructions to install a straight curb instead of a drop curb at the north side of the park between 5th Avenue and University Place.

Following installation of the straight curb, SH5 emailed Parks asking Parks to confirm that the ramp and drop curb were no longer required. Parks advised SH5 to install a vehicular ramp as stated in the contract. On November 9, 2016, SH5 submitted a proposed change order for $7,586.20 to cover additional work required to replace the straight curb with a vehicular drop curb. Parks denied the change order stating Parks had never advised SH5 verbally or in writing that the vehicular ramp was deleted from the contract.

On March 22, 2017, SH5 requested a partial time extension from Parks which included 22 enumerated claims, but omitted the claim to be compensated for the straight curb replacement. SH5 subsequently filed a petition with the Contract Dispute Resolution Board for additional compensation. The Board denied the claim, ruling that SH5 had waived its claim by failing to reserve it in the partial time extension. In addition, the Board ruled that the curb replacement was corrective in nature and that 5h5 was not entitled to compensation.

The Board also denied two other claims. SH5 claimed $15,685 for the purchase of materials that Parks later deleted from the contract, and additional $10,684 for moving SH5’s staging area during the World Science Festival held at Washington Square Park June 3-5, 2016. The Board ruled that the materials were not specially constructed and could be used elsewhere, and that the staging area relocation was pursuant to the contract and work permits. In addition, SH5 failed to preserve its claims by not asserting within the time period set by the contract.

SH5 Construction Corp. v. Dep’t of Parks & Recreation, OATH Index Nos. 1766/18 & 2111/18, mem. dec. (Sept. 6, 2018).


By: Mary Stewart (Mary is a New York Law School student, Class of 2019.)

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