Owner-Caused Delays Do Not Excuse a Contractor's Failure to Maintain Essential Services

A recent New York decision serves as a pointed reminder that a contractor performing work in an occupied residence must plan and sequence its work to preserve—or promptly restore—essential sanitary facilities, even when owner-directed changes delay portions of the project.

In Bak v. U.S. Levin Grp Corp., 2026 N.Y. Slip Op. 51045(U) (Civ. Ct., Kings County July 5, 2026), the Civil Court of the City of New York awarded a homeowner $17,400—the entire amount she had paid under the parties’ renovation contract—after the contractor left the apartment’s only toilet unusable for more than one month.

The Dispute

The contractor was retained to renovate the plaintiff’s bathroom and perform additional work throughout her apartment. During construction, the contractor removed the apartment’s only toilet. It was not restored to service for more than a month.

The plaintiff lived in the apartment with her 81-year-old husband, who was in poor health. While the toilet was unusable, the couple was required to leave their building and use restroom facilities in a neighboring building.

The contractor argued that the project had been delayed because the plaintiff changed her selections for bathroom tile and other finishing materials. The contractor ultimately completed the renovation, and the bathroom was operational by the time of trial.

The Court’s Decision

Following a bench trial, the court found that the contractor had materially breached its obligation to perform the renovation in a good and workmanlike manner.

Although the court credited the contractor’s testimony that the plaintiff’s material-selection changes caused some delay, it held that those changes did not justify leaving the apartment without its only toilet for several weeks. The court emphasized that changes affecting finish work did not relieve the contractor of its separate responsibility to implement reasonable measures to restore basic sanitary facilities or otherwise mitigate the hardship imposed upon the occupants.

The court awarded the plaintiff $17,400, representing the full amount she had paid the contractor. The award was intended to compensate her for the diminished value of the contractor’s performance, the prolonged loss of use of an essential portion of her home, and the resulting inconvenience.

Limits on Consequential Damages

The plaintiff also contended that the ordeal contributed to her husband’s declining health and subsequent death. The court rejected that portion of the claim because the plaintiff had not asserted a properly supported wrongful-death or personal-injury cause of action and presented no competent medical evidence establishing causation.

The court further held that the husband’s death was not a reasonably foreseeable consequence contemplated by the parties when they entered into the renovation contract. Accordingly, no damages were awarded for his illness, suffering, or death.

Practical Implications for Contractors

The decision illustrates that an owner’s changes, indecision, or late material selections will not automatically excuse every resulting project condition. The contractor must establish a causal relationship between the owner’s conduct and the specific delay or disruption for which the contractor seeks relief.

More importantly, delays affecting finishes do not necessarily justify leaving essential building systems unavailable. On projects in occupied residences, contractors should separately plan for temporary toilets, temporary plumbing connections, phased shutdowns, expedited restoration, temporary relocation arrangements, or other reasonable measures when work will interrupt critical services.

Change orders and delay notices should identify not only the additional time and cost resulting from an owner’s change, but also any effect on habitability, access, plumbing, electrical service, heat, water, fire protection, or other essential systems. The documentation should explain the available mitigation measures, their cost, and which party is responsible for authorizing and paying for them.

Contractors should also avoid relying on generalized statements that “owner changes delayed the project.” Daily reports, emails, photographs, procurement records, schedules, requests for information, and written notices should demonstrate precisely what work was affected and why the contractor could not proceed.

The Bottom Line

Bak is a trial-level, fact-specific decision, but its practical lesson is significant: a contractor may be found to have materially breached its contract even when the work is eventually completed and even when the owner contributed to project delays.

When construction affects an occupied home, the contractor’s duty to perform in a good and workmanlike manner includes reasonable planning and mitigation to protect the occupants’ ability to use essential portions of the premises. Owner-caused delay may support an extension of time or additional compensation, but it is not a blank check to disregard habitability and basic sanitary needs.

Welby, Brady & Greenblatt, LLP counsels contractors, subcontractors, owners, developers, and construction managers concerning contract drafting, project administration, delay claims, change orders, payment disputes, and construction litigation.

For additional information concerning this decision or construction-contract risk management, please contact Thomas S. Tripodianos at ttripodianos@wbgllp.com or (914) 428-2100.

This Legal Alert is provided for informational purposes only and does not constitute legal advice. Readers should consult counsel regarding the application of the decision to their particular contracts, projects, and circumstances.

If you would like more information regarding this topic please contact Thomas S. Tripodianos at ttripodianos@wbgllp.com or call (914) 607-6440