Plaintiff Wins Recovery in Quantum Meruit for Heating and Cooling Services Provided

Posted on December 28, 2007 by K&L Gates

Capital Heat, Inc. v. Buchheit, 848 N.Y.S.2d 481 (N.Y. App. Div. 2007)

In this case, the court awarded recovery in quantum meruit to plaintiff for heating and cooling services it had provided at the defendant's residence.  The court explained that:  (i) by issuing invoices, (ii) the plaintiff established an expectation that it would receive payment for its services, (iii) the invoices established the reasonable value of those services, and (iv) the defendant did not dispute that the plaintiff performed the heating and cooling work in good faith or of acceptable quality.

The court rejected the homeowner's argument that it was not liable for such payment because plaintiff was a sub-contractor.  The court reasoned that, although it is a firmly established principle that a property owner who contracts with a general contractor does not become liable to a subcontractor on a quasi contract theory unless it expressly consents to pay for the subcontractor’s performance, there was evidence that the defendant hired a project manager rather than a general contractor, and thus a fair interpretation of the evidence supported holding that there was no general contractor. 
Tags: ,

Court Denies Summary Judgment in Insurance Dispute Concerning Indemnification for Wrongful Death Claim

Posted on December 23, 2007 by K&L Gates

Grand Crossing, L.P. v. U.S. Underwriters Ins. Co., 2007 WL 4591989 (S.D.N.Y. Dec. 18, 2007)

This case concerned an insurance policy claim made for partial coverage of settlement in a wrongful death action based on a construction site fatality.  The Southern District of New York denied the parties' cross-motions for summary judgment. 

The specific issue involved whether the defendant-insurer’s policy covered a wrongful death claim arising out of a construction accident that plaintiffs had settled.  Plaintiffs owned the construction site where the death occurred and initiated this action, as assignees of their former subcontractor, for contribution/indemnification from the insurer.  Defendant claimed that the limited scope of the coverage and the timeliness of the contractually-required notice prevented it from being liable.

The court denied defendant’s summary judgment motion for several reasons.  First, plaintiffs had standing because they stood “in the shoes of the insured.”  Second, defendant failed to show that no set of facts existed upon which plaintiffs could show that their delay in providing notice was reasonable.  Third, and most importantly, defendant failed to establish that the limitation endorsements set forth in the policy unambiguously excluded coverage of the accident at issue.  With respect to the latter argument, the court reasoned that a “court should only grant summary judgment in favor of the insurer where the classification could not potentially be interpreted to cover the activity at issue.”

Similarly, the court denied plaintiffs’ cross-motion for summary judgment because the facts relevant to determining whether plaintiffs’ notice was reasonable were in dispute.
Tags: ,

Court Strictly Interprets Notice Requirements in Construction Contract

Posted on December 20, 2007 by K&L Gates

Marcor Remediation, Inc. v. County of Broome, 847 N.Y.S.2d 702 (N.Y. App. Div. 2007)

In this case, defendant hired the plaintiff contractor to perform lead abatement work.  The contractor sued for breach of contract and quantum meruit, alleging that the county had failed to pay for work performed.  The terms of the contract prohibited plaintiff from bringing any action arising out of the contract unless plaintiff “strictly complied with all requirements relating to the giving of notices and information with respect to such claim . . . .”  The contract further required plaintiff to file a “verified, detailed statement” in order to claim that it performed revised work under the contract, as plaintiff claimed here.  Plaintiff appealed after the action was dismissed by the trial court.

The appellate court affirmed, finding that plaintiff had failed to provide a "verified, detailed statement."  The court explained:   “compliance with notice of claim provisions of a municipal contract constitutes a condition precedent to the commencement of an action for breach of contract which may only be avoided if the municipality acted in a manner that precluded the other party from complying.”

Tags: ,

No Victory for Plaintiff Where Renovations Were Made in Good Faith

Posted on December 19, 2007 by K&L Gates

Baker v. City of Plattsburgh, 847 N.Y.S.2d 300 (N.Y. App. Div. 2007)

In this case, plaintiff sought recovery of property damages due to water runoff caused by a utilities renovation and paving project carried out by defendants on an adjacent property.  The Supreme Court granted defendants’ summary judgment motion, dismissing the causes of action against them alleging that water runoff caused property damage.  However, defendants’ motion papers did not specifically address the remaining causes of action for trespass, due process rights violations and zoning ordinance violations, and thus those claims remained.

On appeal, the Third Department affirmed, explaining that defendants had satisfied their burden of showing that their efforts to improve the land were made in good faith and that they did not intentionally divert water onto plaintiff’s land.  The court explained the general rule, that “[l]andowners making improvements to their land are not liable for damage caused by any resulting flow of surface water onto abutting property as long as the improvements are made in a good faith effort to enhance the usefulness of the property and no artificial means, such as pipes and drains, are used to divert the water thereon.”

The court also upheld the lower court’s refusal to dismiss defendants’ cross claims for contribution and indemnification from the engineering firm that designed the renovation project.  To be entitled to such dismissal, the engineering firm had to show (1) the project was properly designed to prevent water runoff damage to plaintiff’s property, and (2) the design of the project was unrelated to plaintiff’s remaining claims.
Tags: ,

Court Awards Attorneys' Fees in Breach of Contract Action

Posted on December 18, 2007 by K&L Gates

Fabcon East, LLC v. Steiner Bldg. Co. NYC, 848 N.Y.S.2d 267 (N.Y. App. Div. 2007)

In this case, the court upheld an award of damages and contractually-based attorneys’ fees to plaintiff, finding sufficient support for the conclusion that defendant had breached the parties’ construction subcontract and the implied covenant of good faith and fair dealing.  However, the court reduced the attorneys’ fee award in the amount of $19,250.50 -- the amount of fees incurred by plaintiff in a separate action commenced against it by a sub-contractor.  The court explained:  “the subcontract provision dealing with an award of contractual attorney’s fees to the prevailing party in a covered action did not include the New Jersey action, to which [defendant] was not a party.”

Tags: ,

No Summary Judgment on Labor Law Claims Regardless of Whether Plaintiff's Work Was Performed in Furtherance of Contract

Posted on December 13, 2007 by K&L Gates

Butt v. Bovis Lend Lease LMB, Inc., 2007 WL 4260519 (N.Y. App. Div. 2007 Dec. 6, 2007)

In this case, plaintiff sued for common law negligence and Labor Law violations, seeking to recover for injuries allegedly sustained when he fell from ladder while plastering a ceiling beam of an interior stairwell at a public school.  Defendants included the City of New York which owned the premises, the Board of Education which operated and maintained the premises, the general contractor, and the construction manager.  Defendants moved to dismiss the Labor Law violations on summary judgment, arguing that the work the plaintiff was performing when he was injured was outside the scope of his contract, and thus was not covered by the Labor Law.  The court denied the motion, finding that such a defense only applied to the benefit of parties who did not have authority to supervise or control the work at issue.  The court explained that such a defense would not apply to the owner’s liability because injury to a worker may not be circumscribed by contract.  Further, conflicting evidence had been presented as to whether the work was outside the scope of the contract., and so the issue was not capable of resolution on summary judgment. 

Tags: ,

Subcontractor Liable for Damages Caused by Equipment It Was Contractually Obligated to Provide at Construction Site

Posted on December 13, 2007 by K&L Gates

Urbina v. 26 Court St. Assocs., LLC, 847 N.Y.S.2d 67 (N.Y. App. Div. 2007)

This case involved causes of action for negligence, violations of Labor Law §§ 200, 240(1) and 241(6), and loss of consortium brought by an electrician, Urbina, and his wife.  Plaintiffs sought to recover damages for injuries sustained when a platform upon which Urbina was kneeling collapsed at a construction site.  That platform had been installed by the drywall subcontractor, R&J Construction Corp. for its own use.  Plaintiffs brought claims against the owner of the premises, the lessee of the premises, and R&J.  The issues on appeal involved the reasonableness of the damages awarded to plaintiffs, and contractual indemnification between defendants. 

Regarding the first issue, the First Department remanded the case for a new trial solely related to damages, finding the pain and suffering amounts awarded in the lower court were unreasonable.  The court ruled, however, that an agreement by plaintiffs to stipulate to reduced awards would obviate the need for a new trial.

Second, the First Department found that R&B was obligated to indemnify the licensee of the property.  R&J argued that its contractual indemnity obligations were only triggered if Urbina’s accident arose out of work R&J was performing with the lessee with whom it had a contract.  Because Urbina was performing electrical work when he was injured, rather than carpentry work covered by R&J’s contract, R&J disclaimed all liability.  The contractual provision at issue provided, in pertinent part, that R&J had to indemnify the owner and lessee of the premises against “all claims, . . . liability [and] damages . . . arising out of the work performed under th[e] contract” and did not contain any language limiting the scope of that obligation.  The First Department reasoned that R&J’s contractual obligation to provide the scaffold was sufficient to trigger its contractual indemnification obligations.  Therefore, the court concluded that Urbina’s authority to use the scaffold was immaterial to R&J’s liability for any injuries arising out of use of that scaffold.  (In dicta, the court noted that it was not deciding whether a different conclusion would result if R&J had attempted to prevent use of the scaffold by unauthorized persons.)
Tags: ,

No Summary Judgment for Contractors Relying on Preemption

Posted on December 10, 2007 by K&L Gates

Wysocki v. Kel-Tech Constr. Inc., 847 N.Y.S.2d 166 (N.Y. App. Div. 2007)

Here, the court denied the defendants’-contractors’ summary judgment motion to dismiss the breach of contract claims brought against them by plaintiffs-construction workers.  The court reasoned that the plaintiffs’ contractual rights would be independent of a collective bargaining agreement whether or not Labor Law § 220 was incorporated into the public works contracts at issue.  The court explained that Labor Law § 220 applies across the board, making its requirements non-negotiable.  Therefore, the collective bargaining agreement did not have any bearing on the public works contracts at issue in the case.

Tags: ,

Second Department Grants Leave to Amend Answer to Plead Statute of Limitations Defense Under CPLR 214-c

Posted on December 10, 2007 by K&L Gates

Felice v. Am. A.W.S., Corp., 846 N.Y.S.2d 656 (N.Y. App. Div. 2007)

In this action, plaintiffs sought to recover for personal injuries and property damages arising out of defendant's renovation of plaintiffs’ residence.  Plaintiffs alleged that defendant had negligently performed the work, resulting in water leaks and the formation of mold.  Defendant sought leave to interpose an amended answer which included, inter alia, the affirmative defense of statute of limitations.  Defendant contended that the plaintiffs' causes of action sounded in negligence and thus were governed by a three-year statute of limitations. 

The appellate court uphedl the trial court's denial of defendant's motion for leave to plead the affirmative defense.  It reasoned that plaintiffs' claims were based on breach of contract rather than negligence and, as such, the six-year statute of limitations applied and would not bar the claims. 

However, the appellate court found that the trial court should have granted defendant leave to plead the statute of limitations defense insofar as the complaint pleaded a cause of action to recover damages for personal injuries based upon exposure to a toxic substance.  It observed that such claims may have been barred by the applicable three-year statute of limitations for such exposure, CPLR 214-c.
Tags: ,

Fourth Department Rules on Labor Law Claims

Posted on November 30, 2007 by K&L Gates

Mulcaire v. Buffalo Structural Steel Constr. Corp., 846 N.Y.S.2d 838 (N.Y. App. Div. 2007)

In this case, a construction worker and a family member alleged Labor Law and common law negligence causes of action for injuries plaintiff sustained while installing floor decking in a building undergoing construction.  Plaintiff slipped and fell through an uncovered opening approximately 18 feet to the floor.  The trial court granted in part and denied in part plaintiffs' motion for summary judgment, and denied defendants' motion for summary judgment.  Defendants appealed.

The court reversed the lower court’s order granting plaintiffs’ motion for summary judgment with respect to Labor Law § 241(6).  The court reasoning that defendants had raised an issue of fact regarding whether plaintiff was the sole proximate cause of his injuries by suggesting that plaintiff knew or should have known to cover the opening through which he fell. 

Similarly, the court reversed the order inasmuch as it denied defendants’ motion for summary judgment with respect to plaintiffs’ Labor Law § 200 and negligence claims.  The court reasoned that defendants had established that they neither exercised control over the manner or method of the injured plaintiff’s work nor had any control over the premises, and that plaintiffs failed to raise an issue of fact with respect to this issue. 

The court upheld the denial of defendants’ summary judgment motion with respect to the defendant-construction manager, however.  As a matter of law, that particular defendant had contractual authority to enforce safety standards and hire responsible contractors pursuant to Labor Law §§ 240(1) and 241(6), and thus automatically was subject to liability under the Labor Law.  The court explained: 

An entity is a contractor within the meaning of Labor Law § 240(1) and § 241(6) if it had the power to enforce safety standards and choose responsible subcontractors . . . and an entity is a general contractor if, in addition thereto, it was responsible for coordinating and supervising the . . . project.  In addition, the entity's right to exercise control over the work denotes its status as a contractor, regardless of whether it actually exercised that right.

(Citations and internal quotations omitted.)
Tags: ,

Court Awards Liquidated Damages and Specific Performance in Breach of Construction Contract Case

Posted on November 5, 2007 by K&L Gates

Granite Broadway Dev. LLC v. 1711 LLC, 845 N.Y.S.2d 10 (N.Y. App. Div. 2007)

In this case, a contractor sued a property owner for breach of a construction contract.  After a bench trial, the court awarded the owner liquidated damages, certain offset damages, and specific performance.  The contractor appealed.

The court upheld the liquidated damages award, explaining that, contrary to plaintiff's assertions, “there is no blanket prohibition against a court ordering the equitable relief of specific performance in a case involving breach of a construction contract.”  The court stated that, at most, courts are vested with discretion to refuse such relief.  The court concluded that the court had properly granted both liquidated damages and specific performance in this case, as the legal and equitable remedies redressed separate injuries.

In addition, the liquidated damages clause at issue did not extinguish any rights or obligations under the contract.  The court observed that such a provision would not be implied absent clear and express language to that effect.  Further, the court observed that the liquidated damages clause did not state or even imply that liquidated damages would be defendant's sole remedy.  For equitable relief to be completely barred, the court explained, the contract under which the relief arose must expressly so provide.
Tags: ,

Construction News and Commentary

Posted on January 1, 2007 by K&L Gates

ENR Engineering News-Record the Construction Weekly

New York Construction 

New York State Contract Reporter

Tags: ,

Construction Contracting Opportunities

Posted on January 1, 2007 by K&L Gates

New York State - Office of General Services

Tags: ,

Professional and Industry Associations

Posted on January 1, 2007 by K&L Gates

American Institute of Architects - New York Chapter

Associated General Contractors of America - New York Chapter

Building Trades Employers' Association (BTEANYC)

The General Contractors Association of New York, Inc

Tags: ,

Construction Trades

Posted on January 1, 2007 by K&L Gates

New York State Laborers' Union

District Council 9, New York International Union of Painters & Allied Trades

Tags: ,

State and Local Government Links

Posted on January 1, 2007 by K&L Gates

New York State Assembly Online

New York State Senate Online

New York State - Dept of Environmental Conservation

New York State - Employment Relations Board

New York State - Industrial Board of Appeals

New York State - Dept of Labor

New York State - Public Employment Relations Board

New York State - Office of Real Property Services

New York State - Dept of State - Division of Code Enforcement and Administration

New York State - Workers' Compensation Board

New York City - Dept of Buildings

New York City - Dept of City Planning

Tags: ,

State Statutes, Regulations and Local Codes

Posted on January 1, 2007 by K&L Gates

A. State Statutes

New York Consolidated Laws

EDUCATION LAW - SECTION 7200-7212 - Engineering and Land Surveying

EDUCATION LAW - SECTION 7300-7308 - Architecture

ENERGY LAW - SECTION 11-101 - 11-110 - State Energy Conservation Construction Code Act

EXECUTIVE LAW - SECTION 370-383 - New York State Uniform Fire Prevention and Building Code Act

GENERAL BUSINESS LAW - SECTION 756-758 - Constructions Contract

GENERAL BUSINESS LAW - SECTION 760-767- Protection of Underground Facilities

GENERAL MUNICIPAL LAW - SECTION 100-109b - Public Contracts

GENERAL OBLIGATIONS LAW - SECTION 5.322.1 - 5.324.2 - Construction Contracts

LABOR LAW - SECTION 160-169 - Hours of Labor

LABOR LAW - SECTION 190-198 Payment of Wages

LABOR LAW - SECTION 220 - Public Work

LABOR LAW - SECTION 240-241 - Building Construction, Demolition and Repair Work

LABOR LAW - SECTION 900-911 - Asbestos

LIEN LAW - TITLE 32

PUBLIC AUTHORITIES LAW - SECTION 2875-2880a - Contracts of Public Authorities

STATE FINANCE LAW - SECTION 135-146 - Contracts for the State

WORKERS' COMPENSATION LAW - TITLE 64

B. State Regulations

Official Code, Rules and Regulations of the State of New York (NYCRR)

9 NYCRR 250 et seq Purchasing Procedures for State Agencies

9 NYCRR 7801 et seq State Energy Office Rules

12 NYCRR 23-1.1 et seq - Dept of Labor - Protection in Construction, Demolition and Excavation Operations

12 NYCRR 56-1 - 56-18 - Dept of Labor - Asbestos

12 NYCRR Chapter V - Workers' Compensation Board

19 NYCRR 1201 - Dept of State - Uniform Code: Procedure for Certain Classes of Building  

C. Local and Specialized Codes

Rules of the City of New York (RCNY)

New York City Building Code

2 RCNY Chapter 1 - Board of Standard and Appeals, Practice and Procedure

15 RCNY Chapter 1 - City Asbestos Control Program

Tags: ,