Amendments to Rules of the Commercial Division of the New York Supreme Court Now in Effect

By Michael L. Chartan, partner in the Duane Morris LLP New York office

Effective December 1, 2015, the Commercial Division of the Supreme Court of the State of New York, County of New York amended its rules. First, home improvement construction contract disputes (one to four family homes or individual units  in any residential building including cooperatives and condominiums ) will not be heard by the Commercial Division irrespective of the dispute involving $500,000 or more. Second, the Commercial Division will hear, pursuant to article 75 of New York’s Civil Practice Law and Rules,  applications to stay or compel arbitration and to affirm or disaffirm awards and injunctive relief irrespective of the $500,000 monetary threshold provided the arbitration agreement requires the arbitration to be heard outside the United States.

The impact of these amendments will be to eliminate access to the Commercial Division for owners and contractors among others where the dispute involves a home improvement contract. At the same time, the Commercial Division will open its doors to arbitration proceedings conducted outside the United States thereby affording parties access to a specialized court in Manhattan. Parties are still free to agree in their arbitration agreements where issues related to arbitration will be heard. If the parties provide for these issues to be heard in New York County, then the Commercial Division will be available to them.

To read the full text of the Administrative Order, please visit the New York Courts website.

 

Massachusetts Trial Court Showing Deference to Arbitration as Sutow and Harelick Decisions Hew to Policy Favoring Arbitration

For many reasons, it’s good to be New England Patriots quarterback Tom Brady in Boston. However, in light of two recent Massachusetts trial court decisions, it may have been good for him that he was not in court in Boston over the summer when challenging the NFL’s adverse arbitration ruling. Over the space of two weeks in late November and early December, the Massachusetts Superior Court showed a markedly, if not surprising, pro-arbitration bent, as it upheld a party’s right to enforce an agreement to arbitrate, even after eight months of litigation in court, and upheld an arbitral award that applied out-of-state law in conferring multiple damages against a respondent despite a choice-of-law clause in the agreement mandating Massachusetts law. Either decision taken individually would be indicative of significant judicial deference to arbitration and arbitral awards. Together, they show the challenges that parties may face when attempting to avoid both an arbitration clause and/or a highly adverse, perhaps even peculiar, result.

Please visit the Duane Morris website to read the Alert, written by Duane Morris partner Michael B. Donahue in the firm’s Boston office, in its entirety.

Eastern District of New York Issues Decision in Recent Construction Contracts Case

By Michael L. Chartan, partner in the Construction Group in Duane Morris’ New York office

Construction contracts in New York and in other states frequently include provisions that bar recovery of damages for delay and require extra work to be authorized in writing. These types of provisions are enforceable. Exceptions exist that will permit recovery of delay damages and for extra work in the face of these exculpatory provisions. In Bricklayers Ins. & Welfare Fund v. Minhas Gen. Contrs. Co., LLC, 2015 U.S. Dist. LEXIS 151965, Judge Frederic Block sitting in the United States District Court for the Eastern District of New York, denied summary judgment finding triable issues of material fact. Subcontractors and general contractors have limited leverage to remove these types of provisions from the contract. Nonetheless, review of project records by a knowledgeable attorney may well reveal facts to overcome these provisions.

New York University Gets $100M Donation for Engineering School

NYU Polytechnic School of Engineering received a $100-million donation from trustee Chandrika Tandon and her husband, Ranjan. The school will be renamed the Tandon School of Engineering. The Tandons said in a statement that they “hope their gift will bring many more of us together to reinvent engineering.”

NYU President John Sexton said the funds would go to faculty, financial aid and new areas of engineering. NYU pledged to raise an additional $50 million in response to the donation. The engineering school has approximately 5,000 students.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law.. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

Duane Morris’ Allen J. Ross Named by Best Lawyers as “Lawyer of the Year” for 2016

Duane Morris is pleased to announce that partner Allen J. Ross in the firm’s New York office has been selected by Best Lawyers as the “Lawyer of the Year” in New York City Litigation – Construction law for 2016, the second-consecutive year he has been honored with this distinction. Only one lawyer in each practice area and city is given this honor. Lawyers are selected based on high marks received during the extensive peer-review assessments conducted by Best Lawyers each year.

Mr. Ross has more than 45 years of experience practicing law in the areas of construction, litigation and real estate. In addition to traditional legal work, he has developed a career in alternative dispute resolution in the construction industry, serving as an arbitrator, mediator and dispute review board chair. His previous honors include continual listings in Best Lawyers in America since 2006 and in Chambers USA: America’s Leading Lawyers for Business since 2008.

 

Duane Morris Partner Richard Lowe to Present at ABA’s “Yes, You Can Try a Construction Case: Planning and Handling a Construction Trial from Voir Dire to Closing Argument” Program

Duane Morris partner Richard Lowe will be presenting at the American Bar Association (ABA) Section of Litigation’s Regional CLE Workshop, titled “Yes, You Can Try a Construction Case: Planning and Handling a Construction Trial From Voir Dire to Closing Arguments,” which will be held on Wednesday, September 9, 2015, in New York City. Mr. Lowe will participate in a panel discussion on “Wrapping It Up; Closing Arguments and Effective Use of Jury Instructions in a Construction Case” from 4:00 p.m. to 5:00 p.m.

For more information about the CLE workshop, please visit the event page on the Duane Morris website.

A Promising Future for Public-Private Partnerships in Georgia

Partner Antony L. Sanacory and associate William W. Fagan III, in Georgia, discuss the fiscal restraints at all levels of government that have made curating new projects and repairing existing facilities even more difficult propositions, in their article for the Daily Report. In the face of these challenges, the Georgia General Assembly and the State University System of Georgia have taken imperative steps to solve these issues by adopting the use of public-private partnerships (P3s) in the state . A P3 is formed through a contractual agreement between a public (federal, state or local) agency and a private sector or entity. The idea is to have the public sector obtain ownership of the project with the costs and risks being maintained and financed by the private sector. In the future, there will most likely be more P3 projects.

To read the full text of the article, please visit the Duane Morris website.

Mayor De Blasio Appoints Maria Torres-Springer As Next NYC Economic Development Corporation President

New York City Mayor Bill de Blasio appointed Maria Torres-Springer as the next president of the New York City Economic Development Corporation (EDC). EDC is a not-for-profit corporation charged with using New York City’s assets to promote economic growth, create jobs and improve the quality of life in in each of the City’s five boroughs. EDC also helps create affordable housing, new parks, shopping areas, community centers and cultural centers.

Torres-Springer will be the first woman to lead EDC. She has been the Commissioner of the NYC Department of Small Business Services (SBS) since 2014. Former EDC president Kyle Kimball resigned in March to join Consolidated Edison as Vice President of Government Relations.

“Maria has a proven track-record opening doors for New Yorkers and working closely with businesses to grow our economy. We are proud to have her lead EDC. Maria will focus on growing vital sectors in our economy, and preparing New Yorkers to seize those opportunities so they can be a part of our economic success story,” said Mayor Bill de Blasio.

Before being appointed Commissioner of SBS, Torres-Springer served as the Executive Vice President and Chief of Staff at EDC. Torres-Springer has also served at the Office of the Deputy Mayor for Economic Development & Rebuilding as a Senior Policy Advisor and as the Chief Operating Officer of Friends of the Highline. Torres-Springer received a B.A. in Ethics, Politics and Economics from Yale University and a Master’s in Public Policy from Harvard University’s Kennedy School of Government.

Jose A. Aquino (@JoseAquinoEsq on Twitter) is a special counsel in the New York office of Duane Morris LLP, where he is a member of the Construction Group and focuses his practice on commercial litigation with a concentration in construction law, mechanics’ lien law and government procurement law.. This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this blog are those of the author and do not necessarily reflect the views of the author’s law firm or its individual attorneys.

Calculating Lost Labor Productivity: Is There a Better Way?

The calculation of lost labor productivity, also termed labor inefficiencies, is one of the most significant elements of damages in a construction dispute and one of the most controversial. If these damages are proven, the monetary value claim can be a considerable amount. This is far from surprising seeing as labor costs can make up to 30 to 50% of overall project costs and if these projects lose money, the unanticipated labor costs result from lesser unexpected productivity. Lost labor productivity has become controversial since owners and general contractors are skeptical of the methods in curating these calculations can be considered questionable, speculative, and illusory. The article will further define how lost labor productivity claims developed; the interplay of Daubert in the pursuit of, and defense against, such claims; and recent federal and state  case law addressing loss productivity.

The full article, written by Duane Morris partner Daniel E. Toomey and Duane Morris associate Joshua S. Marks, along with Dr. Tong Zhao, P.E. and J. Mark Dungan of Delta Consulting Group, Inc., is available on the Duane Morris LLP website, courtesy of The Construction Lawyer.

 

Duane Morris’ Construction Group Nominated for 2015 Chambers USA Award for Excellence

Duane Morris is pleased to announce that the firm’s Construction Group has once again been nominated for one of the prestigious Chambers USA Awards for Excellence. This is the fifth overall nomination for the group, which has been recognized among the top national practices by Chambers for the past several years. Duane Morris is one of only six firms to be finalists in the construction category this year.

The Awards for Excellence honor outstanding firms based on research conducted for Chambers USA 2015. These awards reflect a law firm’s preeminence in key practice areas, as well as notable achievements over a 12-month period, including outstanding work; impressive strategic growth; and excellence in client service.

The Chambers USA Awards for Excellence winners will be announced on Tuesday, May 19, 2015, at Cipriani 42nd Street in New York City.