Traub Lieberman Attorneys Lisa M. Rolle and Vito John Marzano Secure Dismissal of Indemnification and Breach of Contract Claims Asserted against Subcontractor
November 24, 2019 —
Lisa M. Rolle & Vito John Marzano - Traub Lieberman PerspectivesOn August 7, 2019, TLSS Partner Lisa M. Rolle and associate Vito John Marzano obtained a dismissal of all claims on behalf of their client, the subfloor subcontractor at the worksite, in a severed action filed in the Supreme Court of the State of New York, County of Kings.
In April 2014, plaintiff commenced suit against several defendants, including the general contractor, after he sustained an injury when he fell through temporary plywood while installing a staircase at a worksite in Brooklyn. In May 2018, plaintiff filed a note of issue and certified the matter as ready for trial. Immediately thereafter, the general contractor initiated a second third-party action against the subcontractor seeking common-law and contractual indemnification and breach of contract. The Court subsequently granted Traub Lieberman’s motion to sever the second third-party action and instructed the general contractor to file a new action.
After the general contractor recommenced suit, Traub Lieberman, on behalf of its client, the subcontractor, immediately moved to dismiss for failure to state a cause of action. In relevant part, Traub Lieberman pointed to the deposition testimony of the general contractor’s principal to establish that the subcontractor had finished its work on the permanent subfloor no less ten months to over a year prior to plaintiff’s accident, and that the subfloor required no alteration, repair or maintenance prior to or as a result of plaintiff’s accident. Further, the general contractor’s testimony pointed to work performed by another subcontractor that directly resulted in plaintiff’s injuries. It was also brought to the Court’s attention that plaintiff had testified that he fell through a temporary plywood floor, and that the subcontractor had only installed a permanent subfloor.
Reprinted courtesy of
Lisa Rolle, Traub Lieberman and
Vito John Marzano, Traub Lieberman
Ms. Rolle may be contacted at lrolle@tlsslaw.com
Mr. Marzano may be contacted at vmarzano@tlsslaw.com
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Builder Waits too Long to Dispute Contract in Construction Defect Claim
May 10, 2012 —
CDJ STAFFThe Louisiana Court of Appeals has affirmed the lower court’s judgment in the case of Richard v. Alleman. The Richards initiated this lawsuit under Louisiana’s New Home Warranty Act, claiming that they had entered into a construction contract with Mr. Alleman and that they quickly found that his materials and methods had been substandard. They sued for the cost of repairing the home and filing the lawsuit. Mr. Alleman countersued, claiming the Richards failed to pay for labor, materials, and services. By his claim, they owed him $12,838.80.
The trial court split the issues of liability and damages. In the first trial, the court concluded that there was a contact between Alleman and the Richards and that the New Home Warranty Act applied. Mr. Alleman did not appeal this trial.
The second trial was on the issue of damages. Under the New Home Warranty Act, the Richards were found to be entitled to $36,977.11 in damages. In a second judgment, the couple was awarded $18,355.59 in attorney’s fees. Mr. Alleman appealed both judgments.
In his appeal, Alleman contended that the trial court erred in determining that the Home Warranty Act applied. This was, however, not the subject of the trial, having been determined at the earlier trial. Nor did the court accept Alleman’s claim that the Richards failed to comply with the Act. The trial record made clear that the Richards provided Alleman with a list of problems with their home by certified mail.
The court did not establish whether the Richards told Alleman to never return to their home, or if Alleman said he would never return to the home, but one thing was clear: Alleman did not complete the repairs in the list.
A further repair was added after the original list. The Richards claimed that with a loud noise, a large crack appeared in their tile flooring. Mr. Alleman stated that he was not liable for this as he was not given a chance to repair the damage, the Richards hired the flooring subcontractors, and that the trial court rejected the claim that the slab was defective. The appeals court found no problem with the award. Alleman had already “refused to make any of the repairs.”
Finally Alleman made a claim on a retainage held by the Richards. Since Alleman did not bring forth proof at trial, the appeals court upheld the trial courts refusal to award a credit to Alleman.
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Preventing Common Electrical Injuries on the Jobsite
February 03, 2020 —
Kelsey Rzepecki - Construction ExecutiveDespite the overall decrease in electrical workplace fatalities, construction workers remain the most at risk of death from electrical accidents. In 2016, 53% of all fatal electrical injuries were in the construction industry, according to the Bureau of Labor Statistics.
Employers can improve their bottom line by implementing prevention strategies to reduce chances of electrical injuries and create a safer, more efficient jobsite.
What Are the Most Common Electrical Injuries in Construction?
The three types of electrical injuries that occur the most often on construction jobsites are:
- electrocution (such as electric shock and burns) through unintentional contact with high-voltage lines or equipment;
- severe burns or death from explosive gases accidentally ignited by electrical equipment; and
- injuries from falls or from contact with moving equipment after worker experiences a low-voltage electrical shock and can no longer keep balance or physical control of the tools or equipment they have when shocked.
Reprinted courtesy of
Kelsey Rzepecki, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Ms. Rzepecki may be contacted at
krzepecki@graphicproducts.com
Breaking the Impasse by Understanding Blame
January 13, 2020 —
Christopher G. Hill - Construction Law MusingsFor this week’s Guest Post Friday (on a Thursday) here at Construction Law Musings, Victoria Pynchon (@vickiepynchon) joins us for the 4th time. Victoria is an attorney-mediator with ADR Services, Inc. in Century City; an arbitrator with the American Arbitration Association in Los Angeles, California; and, a negotiation consultant and trainer world-wide. Victoria co-founded She Negotiates Training and Consulting in 2010 and writes for ForbesWoman at its She Negotiates blog. She is the author of one of my favorite books on conflict resolution, A is for A*@!#, the Grownups’ ABC’s of Conflict Resolution reviewed at Musings here.
First Let’s Talk About Anger
Please raise your hand if your clients — corporate clients — are angry about the burdens of litigation. Irritated with the document “demands” and interrogatories. Frustrated about the e-discovery. Ticked off at the way opposing counsel asks them questions as if they’re lying. Hot under the collar about the mounting attorneys’ fees and the distance between the day suit was filed and the probable day on which a trial might eventually be scheduled. Simmering about the time the litigation consumes, time they’d prefer to be spending doing their actual jobs — planning for and implementing business strategies for a profitable future instead of fighting about the unprofitable past.
And we’re not even talking about your clients’ anger at the defendant who has stolen their intellectual property or stopped worked at the construction site or refused to release the remaining funds in the construction loan account. And if you believe that powerful people in highly successful and profitable businesses do not fear that litigation might hurt their careers, think again.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Texas “Loser Pays” Law May Benefit Construction Insurers
June 07, 2011 —
CDJ STAFFUnder a new law, Texas HB 274, the Texas Supreme Court will be making rules for motions to dismiss and to expedite suits of less than $100,000. The law also contains two “loser pays” provisions. If a lawsuit is found dismissed for having “no basis in fact or law,” the losing side must pay attorney costs. The other provision caps award of attorney fees if plaintiffs reject settlement offers. Texas Lawyer quotes Houston attorney Mike Gallagher as saying this will affect “the practice of everyone who handles significant lawsuits.”
Gregory Marcum, whose practice includes construction defect litigation, plans to contact insurance companies, as the new law may save them money. “It will definitely be a factor in the defense strategy for handling a case.” He notes that “any insurance carrier would want that done.”
Marcum notes that the offer-of-settlement rules only apply when cases go to trial. “Almost all cases settle.”
Read HB 274
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The Private Works: Preliminary Notice | Are You Using the Correct Form?
August 20, 2019 —
William L. Porter, Esq. - Porter Law GroupThe Private Works – Preliminary Notice form which contractors, subcontractors and suppliers had become accustomed to using for many years changed in 2004. Despite this change in law, many in the construction industry have still not started using the correct new form. Changes in the law, championed by the American Subcontractors’ Association, gave a significant new benefit to subcontractors and suppliers by giving the subcontractor or supplier some expectation of actually receiving notice of when a Notice of Completion or a Notice of Cessation has been recorded on many private works projects. The law also changed the language of the California Preliminary Notice that subcontractors and suppliers must use to protect their mechanics’ lien, bond claim and stop payment notice rights. If Owners do not send out the Notice of Completion as required by law they incur a diminishing of the protections afforded to them when they record a Notice of Completion or Notice of Cessation on many private works projects.
The revised law requires private project owners to notify all subcontractors and suppliers within 10 days after recording a Notice of Completion or Notice of Cessation that a Notice of Completion or a Notice of Cessation has actually been recorded. In order to receive such notice, the subcontractor or supplier must properly serve the new form of Preliminary Notice. If this properly occurs and the private project owner provides the required notice, then the subcontractor or supplier will have 30 days to record a Mechanics’ Lien. However, if an owner under such circumstances fails to properly notify a subcontractor or supplier within 10 days after recording a Notice of Completion or Notice of Cessation, then the Subcontractor or supplier will have 90 days to record a Mechanics’ Lien. The details of the law can be found in California Civil Code sections 8190, 8414 and 8416.
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William L. Porter, Esq., Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Decaying U.S. Roads Attract Funds From KKR to DoubleLine
January 28, 2015 —
Romy Varghese and Mark Niquette – Bloomberg(Bloomberg) -- Investors such as Jeffrey Gundlach’s DoubleLine Capital and KKR & Co. are looking at crumbling U.S. roads -- and like what they see.
DoubleLine, which oversees $64 billion, plans to start its first fund to finance infrastructure, Gundlach said this month. KKR, the private-equity firm led by Henry Kravis and George Roberts, signed a contract in December to manage the water system in Middletown, Pennsylvania, with Suez Environnement Co.’s United Water unit. Its debut infrastructure fund started buying assets in 2011, Bloomberg News reported in April.
The companies are partnering with states and localities fed up with federal inaction to jump-start transit projects and revamp public works suffering from decades of neglect. Such an alliance in Pennsylvania, home to the nation’s highest number of deficient bridges, is letting the state replace 558 crossings more cheaply and more quickly.
Reprinted courtesy of
Romy Varghese, Bloomberg and
Mark Niquette, Bloomberg
Ms. Varghese may be contacted at rvarghese8@bloomberg.net; Mr. Niquette may be contacted at mniquette@bloomberg.net
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Changes to Comprehensive Insurance Disclosure Act in New York Introduced
February 07, 2022 —
Craig Rokuson & Lisa M. Rolle - Traub Lieberman Insurance Law BlogAs discussed in our post on Friday, January 7, 2022, Governor Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, mandating comprehensive, automatic disclosures regarding insurance in all cases pending in New York courts.
Although the law was signed as written, Governor Hochul also made proposed amendments to the law, in the form of a “redline” in an attempt to make the law less onerous on insurance companies and businesses. On January 18, 2022, Senator Andrew Gounardes introduced Senate Bill 7882, incorporating Governor Hochul’s proposed amendments:
- The time for disclosure would be 90 days of service of the answer, instead of 60.
- The proof of insurance could constitute a declaration page only, if a party agrees in writing.
- The required policies to be disclosed only relate to the claim litigated.
Reprinted courtesy of
Craig Rokuson, Traub Lieberman and
Lisa M. Rolle, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com
Ms. Rolle may be contacted at lrolle@tlsslaw.com
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