On April 20, 2022, Justice Cohen of the New York County Commercial Division issued a decision in L & M Fabrication & Mach., Inc. v. Lane Constr. Corp., 2022 NY Slip Op 31305(U), allowing a party to add a quantum meruit claim based on changes to a construction contract being so fundamental that they constituted an intentional abandonment of the original contract, explaining:
Recovery in quantum meruit may be appropriate in the face of a cardinal change to a construction contract, where the change effected an alteration to the essence of the contract sufficient to constitute an intentional abandonment of the original contract. To constitute a cardinal change, the change to the work must affect the essential identity or main purpose of the contract, such that it constitutes a new undertaking. Whether there has been a cardinal change sufficient to invalidate a contract is generally a question of fact.
In the proposed FAC, L&M alleges that the changes to the work orchestrated by Unionport were radical and fundamentally changed the essential identity and main purpose of the Purchase Order from that planned for and otherwise contemplated by the parties. Among other things, as a result of the changes L&M was required to provide permanent steel components for the Project, rather than the initially contemplated temporary steel components, which L&M alleges increased the cost, time, and complexity of its work. In the end, L&M asserts that the changes nearly doubled the cost of its work.
Those factual allegations are sufficient to warrant granting leave to amend the complaint under the permissive standard of CPLR 3025[b].
(Internal quotations and citations omitted).