2007 – Page 4 – Construction Law

Subcontractor Liability For Injuries Caused By Subcontractor’s Equipment

Nov 21 2007

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

Nov 20 2007

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

Nov 14 2007

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

Nov 05 2007

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.

Statute of Repose Bars Negligence Claims After Passage of Six Years

Nov 01 2007

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.

Excessive Withholding Prompts Award of Interest, Attorney’s Fees and Penalties under Pennsylvania’s Prompt Payment Act

Oct 30 2007

Imperial Excavating and Paving, LLC v. Rizzetto Constr. Mgmt., Inc., 935 A.2d 557 (Pa. Super. Ct. 2007)

Pennsylvania’s Prompt Payment Act (the “PPPA”) is intended to protect contractors and subcontractors by providing guidelines for prompt payment on construction projects. Under the PPPA, every subcontractor working on a project subject to the PPPA is entitled to payment, according to the proportion of the subcontract completed, within 14 days of the date when the contractor receives a progress payment on the project. 73 PA.STAT. §507(c). The contractor is, however, entitled to withhold such payment if it has a good faith claim for deficient performance. 73 PA.STAT. §511. If a contractor unreasonably withholds payment to the subcontractor, the contractor can be assessed interest on the payment (73 PA.STAT. §509) plus a penalty of 1percent per month of the amount that was wrongfully withheld. 73 PA.STAT. §512. The amount a contractor may withhold is proper if it “bears a reasonable relation to the value of any claim held in good faith.” See Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880 (Pa. Super. Ct. 2006).

The Imperial Excavating case involved the construction of two soccer fields located at a high school. The grading subcontractor completed its work on the project and submitted an application for payment to the contractor. The contractor submitted its own application for payment to the owner for the subcontractor’s work, certifying that the sub’s work was completed in accordance with the contract documents. The owner paid the contractor’s application less retainage, and the contractor paid the subcontractor. Read More

Power of Court to Uphold Arbitral Award on Alternative Grounds

Oct 24 2007

CTI Group Inc. v. Transclear SA (The Mary Nour), 2007 WL 3001775, [2007] EWHC 2340 (Queen’s Bench Div., Commercial Court)

This case arose out of the non-delivery by the sellers of a quantity of cement. The sellers had argued that the contract had been frustrated by the actions of the Mexican cement cartel. The Tribunal held that the contract had been frustrated but, if they were wrong on that, the buyers had a valid claim for damages. The buyers appealed to the English High Court on the main finding of frustration of contract. The appeal succeeded, the High Court finding the wrong legal test for frustration had been applied.
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Court Intervenes Where Arbitrator Held Not to Have Power to Act Effectively

Oct 18 2007

Pacific Maritime (Asia) Ltd. v. Holystone Overseas Ltd., 2007 WL 2944844, [2007] EWHC 2319 (Queen’s Bench Div., Commercial Ct.)

Pacific sold an accommodation vessel to Holystone under an agreement which made special provision for the return of a block of accommodation or its equivalent to Pacific. Under s.44 of the Arbitration Act 1996 (the “Act”), and in advance of commencement of arbitration, Pacific applied for and obtained a freezing order on the grounds of Holystone’s failure to provide a replacement accommodation block. Arbitration then commenced and Holystone applied for the discharge of the freezing order partly on grounds that the arbitrator had jurisdiction to grant the relief Pacific wanted. Read More

Surety May Waive Right to Challenge Claim Against Payment Bond by Failing to Answer Notice of Claim, Even Where Claimant Did Not Submit Proof of Loss or Documentary Support

Oct 15 2007

J.C. Gibson Plastering Co. v. XL Specialty Ins. Co., 521 F. Supp. 2d 1326 (M.D. Fla. 2007)

In this case, a subcontractor gave notice of a payment bond claim to a surety using a 14-page letter that set forth the factual and legal bases for the claim. The subcontractor moved for summary judgment against the surety arguing that the surety waived its right to challenge the subcontractor’s claim because the surety failed to answer that notice of claim within 45 days, as required under the bond. The surety argued in response that the subcontractor’s notice of claim was insufficient because the subcontractor disregarded the surety’s requests for: (i) a “proof of loss,” and (ii) documentary support for the claim. The surety also argued that, to the extent the court may consider the subcontractor’s notice sufficient, the surety’s requests for additional information satisfied the answer requirement under the bond because the requests indicated that the surety disputed the claim.
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Contractor, But Not Owners of Contractor, Protected Under Maine’s Insurance Guaranty Association Act

Oct 07 2007

Belanger v. N. Am. Specialty Ins. Co., 504 F. 3d 147 (1st Cir. 2007)

In this case, North American Specialty Insurance Company, a surety, brought a suit against its principal contractor, Seacoast Crane Company and Seacoast’s owners (the “Belangers”) to recover monies paid out under a performance bond. NAS had issued the performance bond on behalf of Seacoast to build a corporate headquarters project for DCC Development Corporation. In the suit, initiated in the United States District Court for the District of Maine, NAS asserted claims for indemnification, breach of contract and specific performance based on a judgment that was entered against NAS and Seacoast, and against the Belangers for breach of contract in connection with the DCC project. Read More

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