Author: Thomas S. Tripodianos

Question. Can an unlicensed home improvement subcontractor that had been hired by a general contractor to construct various concrete walls on a house recover damages from a general contractor based on either breach of contract or for the reasonable value of the goods and services?

Answer. No. The contract was for the performance of home improvement services which required the subcontractor to obtain a home improvement contractor license and the subcontractor did not comply with that licensing requirement.

The general contractor, was a general contractor for improvements to be performed on certain real property owned by homeowners. The general contractor hired the subcontractor to perform a portion of the work by constructing various concrete walls as outlined in a subcontractor agreement.

The subcontractor alleges, that the general contractor breached the subcontractor agreement by failing to tender the full amount due. The general contractor responds that the subcontractor was not a licensed home improvement contractor and therefore cannot sue.

A home improvement contractor who is unlicensed at the time of the performance of the work for which he or she seeks compensation forfeits the right to recover damages based on either breach of contract or quantum meruit. Pursuant to CPLR 3015(e), a complaint that seeks to recover damages for breach of a home improvement contract or to recover in quantum meruit for home improvement services is subject to dismissal … if it does not allege compliance with the licensing requirement.

Here, the general contractor established, that the subcontractor sought to recover damages for breach of a contract to perform home improvement services which required it to obtain a home improvement contractor license and that the subcontractor did not comply with that licensing requirement.

Although the licensing statutes are generally consumer protection statutes designed to protect homeowners they can be enforced by general contractors as well.

Question. Is a Project Owner, under Real Property Actions and Proceedings Law ¬ß881, entitled to a license requiring Adjacent Owner to remove a five-foot section of a sidewalk construction bridge to permit Project Owner to erect a construction crane needed for its own project? Adjacent Owner refused Project Owner permission to take down the bridge, claiming it was doing “statutorily required” facade maintenance work. Adjacent Owner argued it might not be able to get New York City’s permission to remove, then replace, the bridge. Project Owner contended the city already approved the removal of the bridge, producing proof of same.

Answer. Yes. The Project Owner is entitled to a license under ¬ß881 to remove Adjacent Owner’s bridge.The Project Owner is however, liable for all damages suffered by Adjacent Owner’s property in carrying out the license under ¬ß881.

Project Owner pursuant to Real Property Actions and Proceedings Law (RPAPL) ¬ß881, seeks a license requiring Adjacent Owner to remove a five-foot section of a sidewalk construction bridge erected in front of the Project Owner’s property, to allow the Project Owner to erect a construction crane (crane) in furtherance of a construction project (Project) taking place on the Project Owner’s property (Project Premises).

The Project Owner is the net lessee of the Project Property. The Project Owner is building a 29-story building on the Project Property to house a hotel (Project).

The Adjacent Owner owns the next door premises which houses a hotel (Adjacent Property), and which has, apparently, been undergoing facade restoration for some time, requiring the construction of a construction bridge (Bridge). The Bridge covers the front of the Adjacent Property, abuts the Project Premises, and extends five feet in front of the Project Premises. No part of the Bridge actually rests on the Project Premises.

The Project Owner has reached the point in its construction activities that it wishes to erect a crane. A pad for the crane has been built abutting the Adjacent Property. The Project Owner claims that it cannot erect the crane on the pad without removing the encroaching five-foot section of the Bridge. It claims that removing the Bridge’s five-foot extension, erecting the crane, and putting up a new bridge would only inconvenience the Adjacent Owner’s work by three days, noting that the Adjacent Owner’s work has been proceeding only intermittently.

Although the parties have had some negotiations on the subject, the Adjacent Owner refuses to give the Project Owner permission to take the five-foot section of the Bridge down. The matter is time-sensitive, as the Project Owner’s construction schedule depends on getting the crane installed expeditiously.

The Adjacent Owner claims that it is doing statutorily-required facade maintenance work. It claims that it cannot ignore its legal obligations to the Department of Buildings (DOB) by removing the safety features required for its own work. The Adjacent Owner insists that it must, by law, continue and complete its facade work, which will only be done when the DOB approves removal of the Bridge.

The Adjacent Owner also claims that the scaffolding rests on the Bridge, and that it would be required to remove all of the scaffolding on the side of its building which abuts the Project Premises if it removed the five-foot section. It argues that this would be an unreasonable and impracticable burden, calling for, essentially, the secession of its entire facade project until the Project next door was completed. The Adjacent Owner claims that it would have to recommence the permit process before it could return to its facade work, another intolerable burden. The Adjacent Owner claims that the Project Owner could easily relocate the position of its crane to the other side of the Project.

Pursuant to RPAPL 881:

[w]hen an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules… Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

The court adopts a standard of reasonableness in judging whether the licensee can do all that is feasible to avoid injuries resulting from its entry on the adjoining owner’s property.

While the Adjoining Owner claims that it will not be able to get DOB permission to remove, and then replace, the overhanging Bridge, the Project Owner, produces an amended “Site Safety and Logistics Plan” (SSP) presented to the DOB, which shows that the DOB has approved the removal of the overhang, the positioning of the crane, and the replacement of abutting bridges on the sites.

The Adjoining Owner’s claim that the Bridge and scaffolding are intertwined, so one cannot be removed without the other, is at odds with the DOB’s approval of the removal of the five-foot extension of the Bridge, and the erection of the crane. In any event, under RPAPL 881, the project Owner is liable for all damages suffered by the Adjoining Owner’s property in carrying out the license, and the Project Owner has stated that it will pay for the removal of the overhang, and any complications which may arise therefrom. The Adjoining Owner’s fears that it will get on the wrong side of the DOB by being asked to delay legally required facade repairs is belied by the DOB approval of the Project Owner’s SSP, and its finding that the Adjacent Owner need not even supply a new SSP.

Question. In an action to foreclose a mechanic’s lien, defendant (property owner) asserts that the action must be transferred to the county contractually designated by the parties for the commencement of all litigation arising under their construction contract. Lienor claims that CPLR 507 precludes such a transfer and that venue must remain in the county where the subject property is situated. Notwithstanding the seemingly mandatory nature of CPLR 507, which requires that a foreclosure action be brought in the county where the property is situated does a contractual forum selection clause, such as the one at issue here, trump the statute?

Answer. Yes. The contractual forum selection clause is controlling.

This action has its genesis in a construction contract between the property owner and Lienor-a contract that required Lienor to furnish labor, equipment, and materials for the installation of elevators at a property located in Brooklyn, New York. Lienor timely filed a mechanic’s lien with the Kings County Clerk. Subsequently, Lienor also filed a notice of pendency with the Kings County Clerk and commenced an action in Kings County seeking a judgment foreclosing its lien, as well as related relief. Owner responded with a demand to change venue to New York County, and, upon Lienor’s failure to acquiesce in that demand, moved for a change of venue.

In seeking a change of venue, owner points to the parties’ construction contract, which provides that: “Any and all action [sic], proceedings and lawsuits must be brought in the Supreme Court of the State of New York and County of New York unless such action or suit is founded upon a dollar amount that is less than the jurisdictional threshold of the Supreme Court.” Thus, owner argues that this broad forum selection clause is controlling and requires this action to be transferred from Kings County to New York County.

Lienor alleges that CPLR 507 mandates that an action to foreclose a mechanic’s lien be brought in the county where the property is situated (here Kings County), and that a forum selection clause may not subvert the statutory mandate. Additionally, Lienor argues that a change of venue would be contrary to public policy because placing venue in another county would deprive it of its security interest and remedies under the Lien Law. Analysis of the issues presented must begin with an examination of the relevant statutory framework.

Pursuant to CPLR 507,

The place of trial of an action in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property shall be in the county in which any part of the subject of the action is situated [emphasis added].

CPLR 501, in turn, provides that:

Subject to the provisions of subdivision two of section 510, written agreement fixing place of trial, made before an action is commenced, shall be enforced upon a motion for change of place of trial.

Notwithstanding that CPLR 501 authorizes the enforcement of forum selection clauses generally, Lienor initially argues that this statute is inoperative when the cause of action, such as here, is governed by CPLR 507. This, it is urged, flows from the mandatory language of CPLR 507, which allegedly creates an inviolable rule requiring an action affecting real property to be commenced only in the county where the property is situated. I agree but there is case law supporting the property owner’s position.

CPLR 501 provides that the parties may contractually fix the venue of an action, which, of course, is the location where the trial will take place. The statute, however, does not dictate where the notice of mechanic’s lien and notice of pendency must be filed, which is governed by Lien Law ¬ß 10 and CPLR 6511. Nor does it dictate where the property must be sold, which is controlled by CPLR 5103. Thus, while CPLR 501 permits parties to select the venue of an action, it may harmoniously co-exist with these other statutory provisions. Viewed otherwise, a foreclosing lienor may comply with the forum selection clause of its contract while simultaneously complying with the procedural prerequisites to enforcement of its lien.

This creates some difficulties to a foreclosing lien holder who will be forced to proceed through various procedural hoops and submit filings in two counties. For example, if a trial in New York County results in a judgment of foreclosure, Lienor will have to obtain a certified copy of the judgment and file it in Kings County in order to enforce the judgment (see, CPLR 5103[a] ). However, whatever burden is imposed by these additional procedural hoops is a burden of Lienor’s own creation and one arising out of its decision to enter into the subject construction contract. I also note that, to the extent that Lienor will be compelled to perform additional procedural steps to enforce its lien, this is hardly tantamount to losing its rights under the Lien Law, as it has claimed.

In sum, Lienor, a sophisticated commercial enterprise, contractually agreed that the venue of any action arising out of this construction contract would be in New York County. Since enforcement of this contractual provision will not affect its rights as a lienor, the forum selection clause should be enforced as written and as authorized by CPLR 501.

Question. Does lack of actual receipt of a summons excuse insured from complying with notice requirement?

Answer. Not where the insured’s failure to keep its address current with the Secretary of State, is why the insured did not actually receive a copy of the underlying personal injury summons.

The subject insurance policy’s notice of claim condition precedent to coverage required the insured to notify the insurance company of an occurrence which might result in a claim “as soon as practicable.” The receipt of service of a personal injury summons with notice by the Secretary of State, as insured’s designated agent, constituted receipt by the insured itself. In New York, when you incorporate you register with the New York Secretary of State. In so registering you are designating the Secretary of State as your agent for service of process (i.e. to receive legal notifications). It is your obligation to keep the Secretary of State notified of any changes in your address. The fact that the insured did not actually receive a copy of the summons with notice, due to its failure to keep its address current with the Secretary of State, does not excuse its noncompliance with the notice requirements of the policy. As the insured did not provide notice of the action to its insurer until receipt of a motion for default judgment some five-and-a-half months after service of process, the insurance company was entitled to disclaim coverage.

Question. Builder (Residential Developer) builds and sells a home to Resident (Individual). Builder then agrees to pay Resident a referral fee if Resident refers a prospective buyer (Prospective Buyer) to Builder to build and sell a new home to Prospective Buyer. Is Builder legally allowed to pay Resident the referral fee if Resident is not a licensed real estate broker?

Answer. No.Under New York law a person may not be paid a referral fee (a.k.a. “kickback”) unless they are a licensed real estate broker. This specifically excludes a broker or other person from paying to someone who is unlicensed a referral fee, commission or other compensation for services, help and/or aid rendered in facilitating the sale of real property.

The purpose of the license requirement is to protect the public from inept, inexperienced or dishonest persons who may aid in the perpetration of a fraud. Due to the license requirement, an unlicensed person will not have legal standing to bring or maintain an action to enforce any such agreement.

A referral fee must be in relation to a transaction where the dominant feature of that transaction is the purchase or sale of real property. Therefore, if real property is the dominant feature of the deal, an unlicensed individual cannot evade the license requirement under the guise of a finder’s fee. However, a finder’s fee may be paid to an unlicensed person when real property is only an incidental part of a transaction, such as in the transfer of a business. Understand that just because it’s called a “finder’s fee” or “incentive” doesn’t make it so. Each transaction must be independently reviewed.

Another scenario that has come up is where Builder (who is not licensed) offers a new car with the purchase of a new home. There is no unlicensed third party involved here. This is really two transactions though; one is the sale of the house and the second is the sale or gift of the car. This transaction does not violate real estate licensing laws however, it does raise certain tax implications such as sales tax on the vehicle and the amount of money attributed to the real estate transaction for purposes of calculating taxes.

Referral fees are also illegal under federal law in certain circumstances. The Real Estate Settlement Procedure Act (RESPA) prohibits referral fees to unlicensed persons involved in a real estate transaction that involves a federally regulated mortgage loan, such as those financed by a government entity, or a financial institution that is insured by the federal government. Thus, the large majority of real estate transactions are subject to federal law, and subsequently, RESPA.

The issue of whether Resident may assert a claim against Builder for breach of contract to recover the referral fee would require that Resident: (1) must be a duly licensed real estate broker and (2) must have been a licensed broker at the time the cause of action arose. Because Resident was not properly licensed, Builder is prohibited from paying such a fee under state law and likely RESPA as well.

The foregoing, under both New York and federal law, does not preclude licensed real estate brokers from entering into referral fee agreements with one another. These agreements are most common when a seller-client is leaving the area and the agent refers them to another agent in the new area to which they are moving in exchange for a fee of the final commission.

Question. I am moving to have my mechanic’s lien extended for one year. What constitutes one year under ¬ß17. The plain language of the statute indicates that a lien shall expire one year from the filing of the original lien or previous extension, the Lien Law does not specify any details about when the year begins and expires?

Answer. This is actually a novel issue. The original date of filing a lien, or the date of filing of its extension, is excluded in making the reckoning to calculate the one-year period.

Lienor wants to have its mechanic’s lien extended for a year. Lienor filed the original mechanic’s lien on May 15, 2009. Lienor then properly extended the mechanic’s lien, pursuant to Lien Law Section 17, by the filing of an extension with the Clerk on May 4, 2010. On May 4, 2011, Lienor seeks to extend its mechanic’s lien for another year.

The application extending the lien for an additional year was opposed on the sole ground that the lien had expired on May 3, 2011. Lienor argues that its filing for an extension on May 4, 2011 was within the one year period provided for by Lien Law Section 17. Property owner contends that May 4, 2011 is one day after the one year period allowed for by Lien Law Section 17.

The novel issue presented is what constitutes a year under Lien Law Section 17. Lien Law Section 17 states, in pertinent part, that:

No lien shall be continued by such extension for more than one year from the filing thereof. In the event an action is not commenced to foreclose the lien within such extended period, such lien shall be extinguished unless an order be granted by a court of record or a judge or justice thereof, continuing such lien, and such lien shall be redocketed as of the date of granting such order and a statement made that such lien is continued by virtue of such order.

The plain language of the statute indicates that a lien shall expire one year from the filing of the original lien or the previous extension. However, the Lien Law does not specify any details when the year begins and expires. Therefore, we must resort to general statutory interpretation and construction to give meaning to the expression that the extension of the lien had to be filed no later than one year from the previous extension date of May 4, 2010.

Article 2 of the General Construction Law (“GCL”) gives the “meaning of terms” which GCL Section 110 states “is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.” Under GCL Section 58, the term year, in a statute, contract, or any public or private instrument, means three hundred and sixty-five days. Furthermore, GCL Section 20 states that:

In computing any specified period of time from a specified event, the day upon which the event happens is deemed the day from which the reckoning is made. The day from which any specified period of time is reckoned shall be excluded in making the reckoning.

Based on GCL Section 20, the original date of filing of a lien, or the date of filing of its extension, is excluded in making the reckoning to calculate the one year period to extend a lien under Lien Law Section 17.

Using this method of calculation, the date of the filing of Lienor’s mechanic’s lien extension, i.e., May 4, 2010, is excluded as being counted in the reckoning of the one year time period under Lien Law Section 17. Thus, the counting of the year began on May 5, 2010 and the one year time period to extend the lien under Lien Law Section 17 continued through May 4, 2011. Accordingly, Lienor’s filing for an extension of the mechanic’s lien on May 4, 2011 was made on the last permissible day and was within the one year period allowed under Lien Law Section 17.

The better practice is of course not to wait till the last minute especially, on a lien of over half a million dollars.

Question. Contractor completes a project that included a completely finished basement with a bathroom. For purposes of extending a mechanic’s lien without the need of a court order is this home now a de facto multiple-family dwelling despite what the certificate of occupancy states?

Answer. No.

The Contractor here was as the old adage says penny wise and pound foolish. He should have obtained a Court order or foreclosed his lien instead of attempting to file a lien extension.

Contractor filed a mechanic’s lien seeking payment of the balance owed for work performed. The Contractor filed an extension of the mechanic’s lien within a year of filing the original lien. The extension, states that, “this is not a lien on real property improved or to be improved with a single family dwelling.”

Pursuant to Lien Law ¬ß17, a mechanic’s lien expires one year after filing unless an extension is filed with the County Clerk or an action is commenced to foreclose the lien within that time and a notice of pendency is filed in connection. Further, pursuant to Lien Law ¬ß17 “a lien on real property improved or to be improved with a single family dwelling may only be extended by an order of a court of record, or a judge or justice thereof.” Stated another way, where a contractor does not obtain court orders of extension, as in the instant case, the lien is subject to discharge unless the encumbered realty is not real property improved with a single family dwelling. Here no such order was obtained.

Owner states that the property was used as a single family dwelling. In addition Owner submits copies of documents such as the deed, real property transfer report, recording and endorsement cover page, and certificate of occupancy all of which categorize the property in question is a single family dwelling. Owner states, in addition, that the Contractor has not commenced an action to foreclose the mechanic’s lien and that more than one year has elapsed from the filing of the initial lien. In addition, Owner contends that the extension of the lien is a nullity as the property against which it was filed is a single-family dwelling.

Contractor states that the entire project for which the Owner contracted included a completely gutted and finished basement with a bathroom and several segregated rooms. Contractor contends that, the basement was set up to be a studio apartment. Contractor claims that therefore, the property is now a de facto multiple-family dwelling, regardless of the use set forth in the Certificate of Occupancy. Contractor argues that the lien extension was proper as the Owner contracted for the conversion of a single-family dwelling into a multiple-family dwelling. Contractor urges that we should look to the use and reality of the property rather than looking at the Certificate of Occupancy.

The mechanic’s lien should be discharged and canceled pursuant to Lien Law ¬ß19(2) as the Contractor failed to begin an action to foreclose the lien within one year. In addition, the lien extension filed by the Contractor should be vacated as a nullity as such lien was not obtained by Court order.

Although the Contractor states that the Owner added a basement apartment to her property there is no proof that the Owner ever made use of the basement as a rental apartment or even intended to utilize the basement as a rental apartment. Those considerations should not alter the undisputed fact that the property has at all times – even during the period of construction – been used solely for residential purposes.

Question. Is a lender entitled to recover on a promissory note and individual guaranty in connection with an acquisition loan where the existence of the note and guaranty is undisputed as well as the failure of the borrower and the guarantor to make payments according to the terms of those documents but lender failed to provide subsequent construction financing?

Answer. Yes.

Lender provided land acquisition financing to borrower, a limited liability company. The loan was personally guaranteed by borrower’s members. There were some discussions between borrower and lender concerning a subsequent construction loan being issued but there were never any formal documents prepared concerning construction financing. Borrower and guarantors question their obligation to repay the acquisition loan since construction financing was never provided.

Lender demonstrated its entitlement to judgment by establishing the existence of the note and the guaranty, and the Borrower’s and guarantors’ failure to make payments according to the terms of those documents (hereinafter the loan documents). Failure to issue subsequent construction financing is not a defense to that claim.

Borrowers may have a claim of promissory estoppel, (a theory under which the Lender would be compelled to abide by its “promise” to issue construction financing) but only to the extent that the claim is premised on conduct occurring after the execution of the loan documents. To the extent that the claim was premised on conduct occurring before the execution of the loan documents, there could be no reasonable reliance on any promise to provide a subsequent construction loan in light of the merger and waiver-of-defense (i.e. all prior negotiations, promises, etc. “merge” into the loan document) provisions in the loan documents. However, these contractual provisions do not preclude reasonable reliance on promises made after the loan documents were executed. Also, potentially available is a claim alleging fraud, but only to the extent that the fraud claim was premised on conduct occurring after the execution of the loan documents.

Question. Owner executed a 10 year service contract with Elevator Contractor, and notified them, a year later, Owner was cancelling it. Elevator Contractor alleges the cancellation could only occur 90 days before the expiration of the contract term. That would mean the anticipated cancellation date was the same as the end of the contract. Was Owner’s cancellation proper?

Answer. Yes.

Elevator Contractor’s reading of the contract is improper. The contract did not state such, and such condition was not agreed to by the parties. The contract was mutually cancellable, but Elevator Contractor had a viable claim for 90 days worth of unpaid services from the date of Owner’s notice.

In relevant part, the contract provides that it may be cancelled as follows:

THE SERVICE IS FURNISHED FROM 10/1/08 FOR THE PERIOD OF TEN (10) YEARS AND WILL BE RENEWED FOR THE SAME PERIOD OF TIME UNLESS CANCELLED BY EITHER PARTY ON NINETY DAYS WRITTEN NOTICE PRIOR TO THE END OF ANY CONTRACT TERM AND ANY AND ALL OUTSTANDING INVOICES MUST BE PAID BETWEEN THE TIME THE NOTICE OF CANCELLATION IS RENDERED AND THE ANTICIPATED CANCELLATION DATE.

By letter dated September 24, 2009, Owner notified Elevator Contractor that it was cancelling the contract “effective today.” Elevator Contractor’s wrote back on September 25th that the cancellation letter was a “nullity” and that it was rejected because the contract was effective until September 30, 2018. According to Elevator Contractor, the cancellation could only occur “at least 90 days prior to the expiration of the contract term.”

Whereas Elevator Contractor claims the contract is unambiguous, Owner contends it makes no sense that an elevator service company would want to tie itself down to one client at an unfluctuating monthly rate for ten (10) years. Thus, Owner contends the cancellation clause has been misconstrued by Elevator Contractor, there is an ambiguity in the contract and it should be construed against Elevator Contractor since Owner had no part in authoring the document. According to Owner, the contract can be “CANCELLED BY EITHER PARTY ON NINETY DAYS WRITTEN NOTICE” at any time “PRIOR TO THE END OF ANY CONTRACT TERM…” Owner argues that if Elevator Contractor intended that this “could only be” cancelled “PRIOR TO THE END OF ANY CONTRACT TERM” it should have contained such language.

The terms of a written contract between the parties should be enforced in accordance with its terms. The interpretation by Elevator Contractor of the contract provision at issue is not supported by the very words in that particular provision or when examining the contract as a whole.

The cancellation clause indicates the contract is for a period of 10 years. It also states that it will automatically renew for another 10 years “UNLESS CANCELLED BY EITHER PARTY ON NINETY (90) DAYS WRITTEN NOTICE PRIOR TO THE END OF ANY CONTRACT TERM…” The contract does not state it can “only be cancelled on ninety (90) days written notice prior to the end of any contract term.” Adopting Elevator Contractor’s interpretation would mean that the “ANTICIPATED CANCELLATION DATE” is the exact same thing as the “END OF THE CONTRACT.” The contract does not state this and it is not a condition agreed to by the parties in writing.

The contract also has a separate provision dealing with payment of invoices. It states that:

THE COMPANY RESERVES THE RIGHT TO SUSPEND OR CANCEL THIS CONTRACT UPON FAILURE TO MAKE PAYMENT OF ANY OUTSTANDING INVOICES OVER 120 DAYS, SUCH SUSPENSION OR CANCELLATION TO BE EFFECTIVE UPON THE MAILING OF NOTICE THEREOF…

Consequently, the contract is cancellable at other times and for other reasons.

Arguments by Elevator Contractor, that it fully intended to be bound for the entire 10 year term of the contract and it could not be terminated sooner than that, only identify their misconception of what the contract stands for. The condition Elevator Contractor claims to have bargained for is simply not evident in the plain language of this agreement. Evidently the parties agreed they could mutually terminate the contract on notice. Elevator Contractor’s argument that it expected the contract to last a “minimum of 10 years” is easily reconcilable with the terms of the contract. It would have lasted 10 years, but for the decision by Owner to cancel it. It could also have been cancelled by Elevator Contractor, however, for non-payment and also on 90 days notice.

Since Owner gave Elevator Contractor notice of the Owner’s intention to terminate the contract, but stated it was effective “today,” Elevator Contractor has a viable claim for 90 days worth of unpaid services from the date of the notice. The notice was not rejected by Elevator Contractor because it failed to give 90 days notice, but because it was not 90 days before the end of the contract term.