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Construction contracts often contain a notice of claim provision which requires either party to provide written notice of all claims to the other party within a specified time period.

Generally, failure to comply with a notice of claim provision is treated as a waiver of the claim. As Kingsley Arms Inc. v. Sano Rubin Construction Co. Inc. demonstrates, courts require that notice of claim provisions be strictly complied with prior to the commencement of an action.

In Kingsley Arms, defendant contractor entered into a subcontract with plaintiff subcontractor for site work and excavation.

The subcontract contained a notice of claim provision which stated that no claim could be asserted unless, as a condition precedent, the party asserting that claim complied with the notice of claim provision. The notice provision further stated that written notice must be provided within 21 days after the occurrence of the event that gives rise to that claim.

In September 2001, almost 11 months after the substantial completion date, the subcontractor sent written notice of its claim to the contractor seeking additional costs, alleging that other subcontractors who had not completed their work precluded the subcontractor from completing its work by the agreed-upon date.