The Americas – Page 23 – Construction Law

Mechanic’s Lien on Owner’s Real Estate Not Precluded Where Contract is Made with Party Other than Owner, but with Owner’s Consent

Dec 26 2007

Madigan v. Trace Constr., Inc., 878 N.E.2d 568 (Mass. App. Ct. 2007)

In this case, the Appeals Court dismissed an action seeking discharge of several mechanics’ liens encumbering plaintiff’s real estate. The plaintiff, who was the owner of the encumbered property, claimed that because the general contractors entered into contracts with a tenant of the plaintiff, not the plaintiff, it was inappropriate to encumber plaintiff’s real property with a mechanic’s lien. The Appeals Court affirmed the Superior Court dismissal, holding that summary discharge of a mechanic’s lien by the court was inappropriate and that defendants were entitled to discovery.

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

Dec 23 2007

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.

Court Strictly Interprets Notice Requirements in Construction Contract

Dec 20 2007

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.”

No Victory for Plaintiff Where Renovations Were Made in Good Faith

Dec 19 2007

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.

Court Awards Attorneys’ Fees in Breach of Contract Action

Dec 18 2007

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.”

Subcontractor Forfeited Right to Damages by Abandoning Project Prior to Completion

Dec 14 2007

Colin C&M Corp. v. Bacon Constr. Co., 2007 WL 4711503 (Mass. Super. Ct. Dec. 7, 2007)

In this case, the Superior Court considered a subcontractor’s claims against a general contractor and the general contractor’s counterclaims relating to a public high school construction project. In finding for the general contractor, the court found that the subcontractor was not entitled to damages because it walked off of the project and therefore failed to comply in strict accordance with the subcontract. Further, the court found that the general contractor was entitled to damages because it had to finish the subcontractor’s work and pay outstanding invoices to the subcontractor’s vendors. Read More

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

Dec 13 2007

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.

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

Dec 13 2007

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.

Construction Manager and Architect Not Liable for Construction Defects Where There is No Contractual Relationship with Plaintiff

Dec 13 2007

Oates v. Larkin, 2007 WL 4442361 (Mass. Super. Ct. Dec. 5, 2007)

In this case, the Superior Court considered motions to dismiss brought by multiple defendants. The case arose out of a large-scale condominium construction project. Plaintiff was president of the association of unit owners and the defendants bringing motions to dismiss were the developer, its board of managers, the construction manager and the architect (who sought to join the motion to dismiss filed by the construction manager). The developers’ and managers’ motions to dismiss were denied, provided that plaintiff complied with an order to amend the complaint. The motion to dismiss by the construction manager was allowed in part, denied in part and the architect’s motion to join was allowed.
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Materialman Rewarded for Detailed Lien Despite “Open Account”

Dec 12 2007

BMC West Corp. v. Horkley, 144 Idaho 890, 174 P.3d 399 (2007)

BMC West provided materials to contractor Davies for work on Horkley’s commercial structure. All sales were on an open account. Davies did not fully pay BMC, so BMC filed liens “on the land on which the buildings were located, and on the buildings themselves.” BMC then sued Horkley for payment and to foreclose the liens. Horkley asserted the “open account defense,” which applies when a materialman “relies exclusively on the general credit of the purchaser, and does not look to the land, structure or building as additional security for the materials sold on credit.” To avoid the defense and make the lien valid, the materials “must be furnished with special reference to their use in a particular building.”

Because BMC had tracked the materials sold to Davis for use on Horkley’s building, it was not relying on Davies’ general credit alone. Since BMC was able to track the materials used to a specific project, the court granted summary judgment in favor of BMC. The Idaho Supreme Court affirmed, including an award of attorney fees.

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