Define what completion will look like
Before work begins, identify the deliverables, schedule, customer responsibilities, payment milestones, and process for approving changes. A phrase such as complete installation may mean different things to an equipment supplier and a buyer who expects staff training and testing to be included. Resolve that difference while the parties are still planning the work.
Consider a hypothetical business ordering a custom display. The order should distinguish design approval, fabrication, delivery, installation, and acceptance. Identify who can approve revisions and how an added cost will be authorized. Staff should know when a request can be handled operationally and when it needs a written change reviewed by the decision-maker.
Create records during ordinary performance
Keep dated delivery receipts, work logs, approvals, invoices, payment entries, and reports of defects. Explain who creates each record and where it is stored. The system should be simple enough for employees to use consistently, including when the owner is unavailable.
New York’s CPLR rule 4518 sets requirements for the business-records exception, including regular business practice and timing of creation. A file is not automatically admissible merely because someone labels it a business record. Counsel can evaluate the necessary foundation and other evidentiary issues; the operational lesson is to record events accurately as part of normal work.
Escalate a specific problem before it expands
A complaint should identify the promised performance, the observed shortfall, the date, and the requested response. Preserve the original photographs or messages supporting it. Where the contract requires a particular notice or opportunity to correct performance, have counsel review that requirement before treating an informal exchange as sufficient.
Keep a separate account of amounts invoiced, paid, credited, and disputed. This allows the parties to distinguish a genuine performance issue from a bookkeeping mismatch. Document proposed corrections without making admissions or promises that the business has not authorized.
Prepare for the possibility of litigation
CPLR section 3101 addresses disclosure of material and necessary information in litigation, subject to protections and exceptions. Relevant records may include unfavorable material as well as documents supporting the business’s position. Ask counsel about preservation when a dispute develops, including routine deletion, departing employees, and messages stored on personal devices.
Do not alter old records to make them more persuasive. If a chronology is prepared later, label it as a later summary and identify the sources. Keep legal communications separate and seek advice about confidentiality and privilege rather than assuming every internal discussion is protected.
A short prevention checklist
- Define deliverables, acceptance, payment, and responsibility for dependencies.
- Identify who can authorize extra work or changed terms.
- Save performance records in a consistent location.
- Escalate complaints with dates, documents, and a concrete requested solution.
- Compare the cost of a practical cure with the operational cost of continued disagreement.
Further reading: the business contracts guide, business disputes guide, and business litigation guide.
Attorney advertising. General educational information, not legal advice. The agreement, governing law, and individual circumstances require review. Reading this article does not create an attorney-client relationship.
Craig A. Fine, Esq.
Attorney and founder of The Law Office of Craig A. Fine, P.C., licensed in New York, New Jersey and Florida. Contributor covering residential and commercial real estate, business law, contracts, landlord-tenant matters, litigation, wills, trusts and estate planning.
