As of November 15, 2019, building owners in New York City are required to install “sustainable roofing zones” on all newly constructed buildings, expansions of existing roofs and roof replacements. The new laws were passed by the New York City Council on April 18, 2019, and became law on May 20, 2019. These new ordinances, known as Local Laws 92 and 94 of 2019, passed as part of a broad package of laws known as the New York City Climate Mobilization Act, whose goal is reduction of building carbon emissions. Because the sustainable roof requirements are effective now, plans submitted to the Department of Buildings for approval must include plans for sustainable roofs.
On March 15, 2018, Presidential Proclamations 9704 (aluminum) and 9705 (steel) were published in the Federal Register Vol. 83. No. 51, at pages 11,619, etc., and pages 11,625, etc., respectively. As many are aware from continued coverage in the press, these proclamations are predicated upon national security concerns of the United States and the reports by the secretary of commerce under section 232 of the Trade Expansion Act of 1962 (19 U.S.C. 1862). Mexico and Canada are excluded from the assessments for now in consideration of ongoing negotiations relating to the North American Free Trade Agreement (NAFTA).
A 10 percent ad valorem duty has been set for aluminum articles as defined in the proclamation relating to that category of product and a 25 percent ad valorem duty has been set for steel articles as defined in the second of these proclamations.
The effective date for the application of these duty rates is midnight Eastern time on March 23, 2018, with respect to goods entered into or withdrawn from warehouses for consumption on or after that date and time. These rates are in addition to any other duties, fees, exactions and charges applicable to such imported products. Such additional charges may include items such as harbor maintenance fees, merchandise processing fees and taxes, as appropriate.
Duane Morris special counsel Charles Fastenberg of the firm’s New York office will present the Lorman Educational Services webinar, “Understanding New York Public Contracts and Procurement Regulations,” on Thursday, October 6, 2016, from 1:00 p.m. to 2:30 p.m. (Eastern time). This webinar will provide insights for contractors and vendors so they are aware of unanticipated issues they may face when submitting bids for contracts.
For more information, please see the event posting on the Duane Morris website.
Charles Lewis and Jeffrey Hamera have authored a chapter on USA Construction Law in the recently published book, International Comparative Legal Guide to: Construction & Engineering Law 2016.
Construction & Engineering Law covers common issues in construction and engineering laws and regulations – including making construction projects, supervising construction contracts, common issues on construction contracts and dispute resolution – in 29 jurisdictions.
The USA chapter includes the following sections: 1. Making Construction Projects; 2. Supervising Construction Contracts; 3. Common Issues on Construction Contracts; 4. Dispute Resolution.
To read the full text of the chapter online, please visit the ICLG website.
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.
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.
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.
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 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.
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.