Archive: November 2007

1
Fourth Department Rules on Labor Law Claims
2
Statute of Limitations Begins to Run When Subcontractor Completes All Work on Subcontract, Including Change Orders
3
Jury to Decide Whether Falling Debris was Foreseeable at Construction Site
4
General Contractor Not Entitled to Damages for Performing Subcontractor’s Work, Where General Contractor Failed to Give Required Notice to Subcontractor
5
Chapter 558 Pre-suit ADR Process Does Not Apply to Construction Defect Claimant Who is Both Owner and Contractor
6
Subcontractor Liability For Injuries Caused By Subcontractor’s Equipment
7
Default Judgment Overturned Due to Law Firm Error
8
Third Party Defendant’s Summary Judgment Appeals Go Unheard
9
Court Awards Liquidated Damages and Specific Performance in Breach of Construction Contract Case
10
Statute of Repose Bars Negligence Claims After Passage of Six Years

Fourth Department Rules on Labor Law Claims

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.

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Statute of Limitations Begins to Run When Subcontractor Completes All Work on Subcontract, Including Change Orders

N.B. Kenney Co., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 876 N.E.2d 1175 (Mass. App. Ct. 2007)

In this case, the Massachusetts Appeals Court held that for the purposes of the statute of limitations, a subcontractor’s time to file suit begins to run at the completion of all work on a particular subcontract, including any change orders thereto. 

The defendant insurance company in this case moved for summary judgment on the basis that the plaintiff completed the change order giving rise to the complaint more than one year prior to filing suit and that the suit was therefor time-barred.  The court rejected this argument, holding that the subcontractor’s work on other change orders pursuant to the same subcontract tolled the limitations period until all work on the subcontract was complete.  The court noted that continued work for the same owner or on the same location, but under a new and independent subcontract would not have tolled the limitations period.

Jury to Decide Whether Falling Debris was Foreseeable at Construction Site

Amerson v. Melito Constr. Corp., 845 N.Y.S.2d 457 (N.Y. App. Div. 2007)

In this case, the Second Department reversed a finding of summary judgment concerning an alleged violation of Labor Law § 241(6).  Plaintiff, a masonry subcontractor, was injured while performing his duties at the construction site when a concrete block fell on his head.  At the time he was injured, plaintiff was wearing a hard hart and had various pieces of equipment, including a chipping hammer, scraper, shovel and wheelbarrow, in his possession as needed to perform his work. Read More

General Contractor Not Entitled to Damages for Performing Subcontractor’s Work, Where General Contractor Failed to Give Required Notice to Subcontractor

Rockwell Roofing, Inc. v. Jan Five Corp., 2007 WL 4248144 (Mass. Super. Ct. Nov. 15, 2007)

The Superior Court ruled on plaintiff’s motion for summary judgment on both its claim and defendant’s counterclaim.  The court allowed summary judgment in part and denied it in part.  Plaintiff subcontractor filed the action against defendant general contractor and its payment bond surety.  The defendant general contractor filed a counterclaim for breach of contract.  The subcontractor moved for summary judgment on the general contractor’s counterclaim, arguing that the general contractor failed to provide notice as required by the contract prior to performing work on the contract that was the responsibility of the subcontractor.  Summary judgment was granted, dismissing this portion of the general contractor’s counterclaim.
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Chapter 558 Pre-suit ADR Process Does Not Apply to Construction Defect Claimant Who is Both Owner and Contractor

Specialty Eng’g Consultants, Inc. v. Hovostone Props. Fla., LLC, 968 So. 2d 680 (Fla. Dist. Ct. App. 2007)

This construction defect case involved a condominium project.  Defendant argued that the pre-suit alternative dispute resolution requirement in Chapter 558 of the Florida Statutes applied to the claimant, who was both the owner and the contractor of the project.  Chapter 558 requires that construction defect “claimants,” as defined therein, participate in a complex pre-suit ADR process, which includes various inspection and cure period requirements.  The definition of “claimant” in Chapter 558 specifically includes property owners, but specifically excludes contractors.  The court held that a construction defect claimant who is both the property owner and the contractor is not a “claimant” as defined in Chapter 558, and therefore the pre-suit ADR requirement did not apply.

Subcontractor Liability For Injuries Caused By Subcontractor’s Equipment

Saccenti v. City of New York, 846 N.Y.S.2d 236 (N.Y. App. Div. 2007)

In this action based on Labor Law §§ 200 and 241(6) and common law negligence, the Second Department examined the lower court’s grant of summary judgment on all claims to defendant Hallen Construction, a subcontractor hired by a third-party defendant.  The claims involved injuries plaintiff sustained when he tripped over a spike Hallen had installed at the construction site in order to affix steel plates covering the trench it was excavating.
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Default Judgment Overturned Due to Law Firm Error

Franco Belli Plumbing & Heating & Sons, Inc. v. Imperial Dev. & Constr. Corp., 845 N.Y.S.2d 446 (N.Y. App. Div. 2007)

In this case, the appellate court reversed a default judgment entered against defendant New York City School Construction Authority (“SCA”).  Plaintiff had claimed that Imperial Development & Construction Corp., the general contractor, owed over $253,000 to it as the sub-contractor for plumbing work on the project.  Imperial disputed the claim.  Pursuant to Public Authorities Law § 1735(6), plaintiff notified SCA, as the owner of the property where the disputed work took place, of its dispute with Imperial.  Also pursuant to that law, SCA was required to withhold the disputed amount of money from any payments it made to Imperial pursuant to the construction contract.  After plaintiff filed a note of issue, SCA disclosed that it had failed to withhold any money on plaintiff’s behalf.  Consequently, plaintiff moved to preclude SCA from introducing evidence regarding setoffs and back-charges with respect to its contract with Imperial on the basis that SCA had failed to respond to interrogatories seeking such information.  The Supreme Court granted this motion upon SCA’s default. Read More

Third Party Defendant’s Summary Judgment Appeals Go Unheard

D’Angelo v. Builders Group, 845 N.Y.S.2d 814 (N.Y. App. Div. 2007)

This case involved an alleged violation of Labor Law § 240(1) and contractual indemnification.  Specifically, this decision involved an appeal brought by third-party plaintiff Builders Group from the lower court’s denial of its summary judgment motion seeking dismissal of the complaint and its cross-motion for summary judgment seeking contractual indemnification from third-party defendant Caruso Painting and Decorating Corp. Read More

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

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.

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Statute of Repose Bars Negligence Claims After Passage of Six Years

Cusolito v. Care Free Homes, Inc., Civ. No. 05-00443, 2007 WL 5578208 (Mass. Super. Ct. Nov. 1, 2007)

On motions for summary judgment, the Superior Court held that the statute of repose barred all negligence-based claims filed by a homeowner against the defendant contractor who installed vinyl siding and the contractor’s president, and also barred the contractor’s third-party claims against a roofing contractor for contribution.  The court allowed the action to go forward on a claim by the homeowners premised on an express ten-year warranty by the vinyl-siding contractor.

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