sta april 2015 newsletter

1April 2015

Updates on the Pacific Park Project

SubcontractorS newSBringing New York’s Union Subcontractors Together to Build a Stronger Construction Industry

April 2015

2 President’s Message By Robert J. Ansbro

3 Update On the Pacific Park Project By Arthur Rubinstein

4 For Construction Safety, There is No Time Like the Present By Hank Kita

6 BTEA Announces New Program By Louis J. Coletti

8 STA Holds First General Membership Meeting By Samantha Sweeney

12 STA’s 46th Annual Construction Awards Dinner to be held on May 9 By Samantha Sweeney

14 Association of Master Painters and Decorators Announce 2015 Officers and Directors

16 Can a Subcontractor Sue an Owner Directly? By Henry L. Goldberg

20 The Legal and Financial Consequences of Moving to a More Contractor Friendly No-Damage- For-Delay Clause By Adam J. Paterno, Esq. and Carl Oliveri, C.P.A.

27 STA is Moving Offices! & New Members!

IN THIS ISSUE

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2 STA Subcontractors NewsSTA Subcontractors News2

President’s MessageApril 2015

I would like to thank our members who have supported the upcoming Annual Awards Dinner on Saturday, May

9 at the Glen Island Harbor Club. The event is coming up quickly, and proving to be a success, thanks in large part

to your efforts. We look forward to seeing you.

As we quickly approach the month of May, we near Construction Safety Week, a time when our industry recognizes

the importance of raising awareness for the need for protocols to prevent onsite accidents. I encourage STA

members to participate in the upcoming OSHA-sponsored National Fall Prevention Stand-Down between May

4 and May 15 this year. This initiative is targeted to achieving their goal of reaching over 3 million workers in the

United States. We can participate by discussing safety precautions, developing rescue plans and more.

A recent development has surfaced on the Pacific Park Project in Brooklyn concerning the STA. I would like to

remind our members that there are no lien rights for this project, which is a private improvement on public land

and that a “completion guarantee” is in effect for this project.

The BTEA announced a new program to increase contract opportunities for minority and women-owned

enterprises. This will provide resources to its MWBE members in hopes to boost participation. Both the City

and State governments have set high standards and new goals for MWBEs to maximize and encourage them to

engage them more in our industry.

The STA is excited to share that we are moving offices! We will be co-locating with the BTEA at our new address:

Subcontractors Trade Association

1430 Broadway, Suite 1106

New York, NY 10018

We are also proud to welcome two new members to our association: Kelly Masonry Corporation and Gem Roofing

& Waterproofing Corporation! We look forward to welcoming them to the STA.

Sincerely,

Robert J. Ansbro

3April 2015

Update On the Pacific Park Project (Atlantic Yards)

Residential buildings are currently out for bid at Pacific

Park Brooklyn. This project was formerly known as

Atlantic Yards.

The Subcontractors Trade Association (STA) wishes

to remind its members that there are no lien rights

for this project, which is a private improvement on

public land.

As you may know, legislation was enacted in New

York State in 2004 which amended the Lien Law

to require a private developer to post “a bond or

other form of undertaking guaranteeing prompt

payment of moneys due to the contractor, his or

her subcontractors and to all persons furnishing

labor or materials to the contractor or his or her

subcontractors in the prosecution of the work on the

public improvement.” In fact, the STA and its state

affiliate, the Empire State Subcontractors Association,

successfully sought this legislation.

In a recent conversation with officials of the Empire

State Development Corporation’s (ESDC) affiliate in

charge of this project, the Atlantic Yards Community

Development Corporation, the STA was advised

that a “completion guarantee” is in effect for this

project. This is basically a corporate guarantee by the

developers, Greenland Forest City Partners, and the

parent companies of the partners. Many of you know

the developer Forest City Ratner, which we are advised

owns 30% of the partnership. The 70% majority

partner is Greenland, a Chinese-based multinational

entity which we are told has other projects and assets

in the United States.

The officials of the ESDC affiliate told the STA that

they believe that the completion guarantee is an

“undertaking” which satisfies the requirement of the

Lien Law. However, they stated that they do not have a

written legal opinion in support of this position.

The STA has been advised that the legal definition

of an “undertaking” is a guarantee by a third party

and this “completion guarantee” by the developers

themselves does not meet the Law’s requirements.

There is a clear question here, and the STA wants

you to be aware of this issue, and to discuss this with

your own attorney if you are considering bidding on

this work.

BY ArthUr rUBinstein, stA LegisLAtive COMMittee ChAirMAn

For Construction safety, there is no time Like the Present

As we approach the observance of Construction Safety

Week in early May, it is time for contractors and their

employees to take stock of the need for safety vigilance

at each and every construction worksite in New York City.

The robust local construction market with the pressure

to finish jobs quickly makes it all the more important

for management and labor alike to review their safety

protocols and renew their commitment to safety.

While education and awareness of construction-related

safety practices have never been stronger, construction

sites remain as dangerous as ever. 2015 has already

proven to be a very deadly year for the New York City

construction industry. So far, there have been at least

eight deaths at construction sites compared to eight in

all of 2014. If this trend continues, we may be looking at

the deadliest year for the local construction industry over

the past decade. Construction accidents have increased

by more than 50 percent since 2008 with 231 accidents in

2014 compared to 151 in 2008.

It is time for contractors to become even more

vigilant about safety at their worksites. One way to

raise awareness is the OSHA-sponsored National Fall

Prevention Stand-Down scheduled to be held between

May 4 and 15, 2015. Its purpose is to raise awareness of

preventing fall hazards in construction. Fatalities caused

by falls from elevation continue to be a leading cause of

death for construction workers, accounting for 279 of

806 construction deaths recorded nationally since 2012.

Fall prevention safety standards were among the top 10

most frequently cited OSHA standards during 2014.

OSHA’s Stand Down last year proved to be an

overwhelming success, reaching more than 1 million

workers across the country. In 2015, OSHA’s goal is for

more than 20,000 separate Stand Downs involving more

than 3 million workers to take place from May 4 to 15,

2015. Reaching that goal, the Stand Downs would have

included almost 4 of every 10 construction workers

throughout the United States.

STA contractors can conduct a Safety Stand-Down by

taking the time to have a toolbox talk or other related

activities such as conducting safety equipment inspections,

developing rescue plans, or discussing job specific hazards.

Contractors are urged to plan a stand-down that works

best for their specific workplace. Contractors will be able

to provide information and feedback about their Stand-

Down and download a Certificate of Participation signed

by United States Secretary of Labor Thomas E. Perez

following the Stand-Down.

I urge the subcontractor members of the STA to mark

Safety Week by participating in the OSHA Stand-Down

initiative. There is no time like the present to renew your

commitment to safety and your commitment to returning

your workers safely home to their families after each and

every workday!

BY hAnk kitA, stA exeCUtive DireCtOr

Email Feedback to the STA Office

4 STA Subcontractors News

5April 2015

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BteA Announces new Program to increase Contract Opportunities for Minority and Women-Owned Businesses

The BTEA has created a new program to increase access

to contracts for its MWBE members, and for the whole

construction industry. The “Access to Construction

Contracts Today” (ACCT) program will provide

resources to minority and women-owned contractors

and increase their participation in the marketplace

The BTEA’s MWBE Leadership Council is led by Co-

Chairs Stephanie Burns of Turner Construction,

Christine Donaldson-Boccia of JD Traditional Interiors,

Linda Christenson-Sjogren of Lend Lease, and Paul

Viera of IDL Communications and Electric Inc. The

Council includes BTEA prime contractors and MWBE

firms who will oversee each of these new initiatives.

Charles Williams of Peckar & Abramson will serve as

General Counsel to the new leadership group.

As part of the program, the BTEA created a 35-member

MWBE Leadership Council that will: 1) oversee the

creation of a uniformed pre-qualification form for

all BTEA contractors; 2) create a database of certified

MWBE contractors that include each company’s

volume of work and largest contract performed; 3)

hold networking events and educational programs

for MWBE firms, and 4) provide support through

the creation of a Project Labor Agreement Hotline.

Specifically, the Hotline will help users understand the

terms and conditions of the PLA’s and provide MWBE

firms free assistance and guidance for those awarded

NYC and NYS contracts under the PLA’s.

New York’s political leaders have set ambitious goals

for the participation of minority and women-owned

business. Governor Andrew Cuomo has set a 30%

MWBE goal for state contracting. In New York City,

Mayor Bill de Blasio’s administration currently set

its goal for the participation of MWBE companies

at 37% of all contracts. This new program will help

contractors striving to meet the ambitious goals for

the participation of minority and women owned

business.

Our new program will make accessing contracting

opportunities better for both MWBE firms looking for

work, and the prime contractors looking to engage

them, by streamlining the pre-qualification forms,

increasing the opportunities for interaction between

them, and providing data about who can do what jobs.

This database of certified firms will include volume of

work and largest contract performed. This will expand

efforts in determining the size and scope of contracts

to maximize MWBE participation.

The BTEA held its first technical assistance session

with MWBE contractors in partnership with the New

York City Department of Small Business Services on

April 29, 2015.

BY LOUis J. COLetti, PresiDent & CeO OF the BteA



7April 2015

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The STA held its first General Membership Meeting of

2015 on Wednesday, March 25th. The seminar, which

took place in the morning at the Steelcase Worklife

Center in Manhattan’s Columbus Circle, featured

the heads of various New York City public agencies

including Andrea Glick, Deputy Commissioner

at the New York City Department of Design and

Construction, George Toma, Vice President of

Construction Management and Operations at the

New York City School Construction Authority, Vincent

Sapienza, Deputy Commissioner for Design and

Construction at the New York City Department of

Environmental Protection, and Stephen Plate, Deputy

Chief of Capital Planning and Director of World Trade

Center Construction at the Port Authority of New

York and New Jersey. The seminar was moderated by

Henry Goldberg, Managing Partner at Goldberg and

Connolly and STA Legal Counsel.

The panelists made presentations on their respective

agency’s Capital Plans and answered questions

from both Mr. Goldberg and the audience, which

consisted of over 70 construction professionals

from subcontractors, insurance companies, general

contractors, and other New York City public agencies

and associations.

Mr. Toma presented the School Construction Authority’s

(SCA) Five-Year Capital Plan for 2015-2019. In 2010-

2014, the SCA invested $11.2 billion, and plan on raising

that number to $12.8 billion in their 6th Five-Year Plan.

Making up that number are the Capacity Program with

$4.4 billion, the Capital Investments Program with $4.9

billion and the Mandated Program with $3.5 billion.

Mr. Toma reported that within that $12 billion, the SCA

plans on spending $210 million for the creation of 2,100

new Pre-K seats and $310 million for the reconstruction

of existing buildings that currently hold approximately

3,100 Pre-K seats. That $12 billion will also fund the

removal of all transportation classroom units and will

ensure that all middle school students have access to

science labs and facilities.

The SCA New Capacity Program includes an estimated 58

new buildings, 53 which are PS and PS/IS schools that will

hold over 28,000 new seats in all five boroughs of New

York City, and four IS/HS schools with over 3,000 seats.

Their Capital Investment Plan includes building

systems (exterior, interior and site improvements),

transportable classroom unit removals and athletic

field upgrades. School enhancements will be allocated

$1.6 billion for reconstruction, safety upgrades, middle

school science lab upgrades, accessibility, physical

fitness, library, and auditorium upgrades, bathroom

upgrades and technology infrastructures.

STA Subcontractors News8

stA holds First general Membership Meeting of 2015 with Public Agency Officials

BY sAMAnthA sWeeneY, stA

continued on page 10

9April 2015

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Mandated Programs will spend an estimated $3.5

billion on PCD lighting replacements ($480 million),

boiler conversions ($750 million), wrap up insurance

($650 million) and prior plan completion of 5th plan

projects ($650 million).

Mr. Toma also shared numerous opportunities for

subcontractors that can be found on the SCA website

for bid opportunities and for prequalification

information. Contractors can find more information

on qualification by calling the qualification hotline

at 718-472-8777 or by contacting Barbara Gavasto,

Director of Operations for Prequalification at 718-472-

8594. Mr. Toma’s entire SCA PowerPoint presentation

can be downloaded on the STA website.

Deputy Commissioner Andrea Glick presented on the

Department of Design & Construction’s (NYC DDC)

Capital Plan along with her colleague John Goddard,

who is the agency’s Chief Contracting Officer.

Ms. Glick and Mr. Goddard went through the eight

Pre-Qualified Lists (PQLs) of contractors for furnishing

all labor, materials and equipment necessary to

perform construction repair work for 1-4 family

homes that were damaged or destroyed by Hurricane

Sandy. Construction management firms holding

contracts with DDC for its “Build it Back” project

will be required to procure all construction contracts

from these prequalified lists. By establishing a PQL,

subcontractors will have shorter contract procurement

times and their bids will be the only ones received by

DDC and the construction managers.

The DDC anticipates the areas of work in their

“Build it Back” program to be in structural repair,

interior and exterior repair, utility service equipment

and accessibility for eligible homeowners. General

construction, electrical, plumbing and mechanical

contractors will be among those subcontractor

companies mainly required for this project.

The DDC PowerPoint presentation with detailed

figures and more information can be found on the STA

website. Please click here for DDC’s direct website. Ms.

Glick can be contacted at DDC at 718-391-2884 and Mr.

Goddard can be contacted at 718-391-2838 with any

questions or comments.

Mr. Plate, who is the Deputy Chief of Capital Planning

and the Director of World Trade Center Construction

at the Port Authority of New York and New Jersey

showed a powerful slideshow of pictures of the

construction of One World Trade Center, and of the

construction of the National September 11th Memorial

and Museum, which features one of the largest man

made water features in the world. It has already

become one of the most visited sites in New York

City with over a million visitors in the year it has been

opened. He also presented photos from the building

of the new Transportation Hub in lower Manhattan.

One World Trade Center is the tallest building in

the western hemisphere, standing at an astonishing

height of 1,776 feet.

Mr. Sapienza spoke about subcontractor opportunities

and different construction plans forthcoming at the

Department of Environmental Protection (DEP).

The STA would like to thank all those who attended and

participated in the March 25th General Membership

Breakfast Meeting and for their continued support

of the association. Please look out for information on

the next STA General Membership Meeting, which will

take place on Wednesday, June 17th.

continued from page 8

11April 2015



stA’s 46th Annual Construction Awards Dinner to be held on May 9

With one week to go, the STA is looking forward to the

46th Annual Construction Awards Dinner on Saturday,

May 9th. The event will take place at Glen Island

Harbour Club in New Rochelle, New York, where four

distinguished individuals in the construction industry

will be honored for their contributions to New York

City’s skyline.

The STA is also excited to announce that highly popular

New York City and New Orleans based jazz ensemble,

Ted Hefko’s New Orleans Band, will be providing the

entertainment and music that night.

On May 9th, the STA and the many guests who will

be attending the awards ceremony will recognize

four New York City construction professionals who

are highly respected and who have dedicated much

of their lives to our industry including Milo E. Riverso

of STV Group, Inc. who will be receiving the Michael

Mazzucca Lifetime Achievement Award, David Worsley

of Silverstein Properties who will be receiving the

Silver Shovel Award, Scott DeMatteis of DeMatteis

Organizations who will be receiving the Builder of the

Year Award, and Weir Welding who will be presented

with the Ronald Berger Subcontractor of the Year

Award. The STA is very honored and humbled to

posthumously recognize Mr. Charles J. Weir who led

Weir Welding until his passing in January of this year.

For the first time, the STA is offering a free year of

membership with the purchase of a platinum page

advertisement in the 46th Annual Awards Journal

to those union subcontractors who are not currently

members. Please share this offer with any professional

contacts and colleagues you may know who are not STA

members. As the association and its membership grow,

so will its strength and representation within New York

City’s construction industry.

To register for the event or to purchase an advertisement

in the journal, please contact Samantha Sweeney at the

STA via email to [email protected] or by calling the

STA office at 212-398-6220.

Click here for the full awards dinner invitation and

form.


BY sAMAnthA sWeeneY, stA

13April 2015

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Association of Master Painters and Decorators Announce their 2015 Officers and Directors

The Association of Master Painters and Decorators of New York City, who is a part of the Subcontractors Trade

Association, have announced their Officers and Directors for the 2015 year.

The results of an election held by the membership during a December 2014 meeting are as follows:

2015 Officers:

• Rad Jelcic, President, R.A. Target

• Dino Erbeli, First Vice President, Manhattan Painting Company

• Todd Nugent, Second Vice President, T.F. Nugent, Inc.

• Stuart Feld, Treasurer, Bond Painting

• Peter Cafiero, Chairman of the Board of Directors, Island Painting

2015 Members of the Board of Directors:

• Faisal Almahdi, Member, Newport Painting

• Arnold Bell, Member, Roebell Painting Co.

• John Caruso, Member, JTC Painting

• Peter Culkin, Member, Sherry Hill Painting

• Michael Giarraputo, Member, KP Organization, Inc.

• John Gisondi, Member, Peter Gisondi & Co.

• Jerry Haber, Member, W&W Glass System

• Randy Pearlman, Member, Albert Pearlman

• Gordon Roth, Alternate Member, Roth Painting

• David Zack, Member, Zack Painting Co., Inc.

• Michael Levine, Alternate Member, L&L Painting Co.

• JoAnn Sanchez Miano, AlternateMember, Carabie Corp.

• Peter Silverstein, Member, Herman Levin Dec.

• David Stross, Member, Premium Painting

For more information about the Association of Master Painters and Decorators of New York,

visit www.masterpaintersny.com.


15April 2015

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Can a subcontractor sue an Owner Directly?

It’s pretty basic . . . before you can sue for breach of

contract, there needs to be a contract.

Consistent with this, when a dispute arises, a

subcontractor, generally, may not sue a project’s owner

directly for breach of contract because, typically, subs

are not in “privity” of contract with project owners.

However, with the right set of unique circumstances,

courts have “bridged” the owner-subcontractor

privity gap to provide an alternate legal route from a

subcontractor directly to an owner.

In a recent New York appellate court decision, this

issue was confronted.

Underlying Facts

A subcontractor entered into a contract with a general

contractor, pursuant to which the subcontractor

was to provide certain construction services in

connection with a condominium conversion project in

Brooklyn. The general contractor acted as the owner’s

construction manager.

Approximately one year later, the subcontractor

commenced an action against numerous parties,

including the owner of the project. The subcontractor

sought half a million dollars in damages for funds it

allegedly expended for labor and material pursuant

to its subcontract and to foreclose upon its mechanic’s

liens.

The defendant/owner moved to dismiss the complaint.

Subsequently, the lower court rendered a decision

agreeing with the general contractor, and dismissing

the subcontractor’s causes of action against the owner.

The lower court reasoned that the subcontractor was

not party to the prime contract with the owner, and

that the subject matter in dispute was solely governed

by the subcontractor’s subcontract with the general

contractor.

The Appellate Decision

The appellate court reversed the lower court’s decision.

The court reasoned that generally, “a subcontractor

may not assert a cause of action to recover damages

for breach of contract against a party with whom it

is not in privity of contract.” Nevertheless, the court

observed that “a subcontractor can sometimes state a

cause of action alleging breach of contract, or unjust

enrichment against an owner where direct dealings

between the owner and subcontractor justify

imposing an obligation on the owner, despite the lack

of contractual privity between them.”

On appeal, the subcontractor successfully alleged

that its contract with the construction manager


BY: henrY L. gOLDBerg, MAnAging PArtner, gOLDBerg & COnnOLLY, stA LegAL COUnseL


17April 2015

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CONTACT: HENRY L. GOLDBERG MANAGING [email protected]

www.goldbergconnolly.com | 516.764.2800

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was executed by the latter “as agent for the

owner.” Additionally, the subcontractor submitted

documentary evidence establishing that the owner, at

times, directly paid the subcontractor. The court held

that these facts provided proof that the owner “was

the true principal and the real party in interest.”

The appellate court held that the lower court should

not have dismissed the subcontractor’s action against

the owner, and should have given the sub its day in

court. The plaintiff/subcontractor would, of course,

still have to prove its case after its revival, but,

significantly, it was not automatically precluded from

proceeding directly against the owner.

G&C Commentary

One of the more venerable quotes in construction law

is . . . “it ain’t necessarily so.” We keep this in mind,

daily, as we seek to address client issues. This appellate

court decision, yet again, demonstrates its validity.

Misconceptions concerning construction law are

rampant, and the operative facts in each situation are

highly project specific and unique. It’s small wonder

that innovative approaches often need to be called

upon to find that loop-hole or strategy necessary to

achieve victory.

It is true that mechanic’s liens are another way to get

a “hook” into an owner. However, they are merely

security devices (although valuable ones), and do

not result in an adjudication on the merits regarding

liability or the amount of damages actually due.

Similar to the rarity of a direct right of action by a

subcontractor against an owner, there are often

“other ways” to obtain what is rightfully yours.

Henry L. Goldberg may be reached at (516) 764-2800

or via email at [email protected]

Jeffrey I. Scott, an associate with Goldberg & Connolly, assisted

in the preparation of this article.

©Goldberg & Connolly 2015

This article has been prepared for informational purposes only.

It is not a substitute for legal advice addressed to particular

circumstances. You should not take or refrain from taking any

legal action based upon the information contained herein

without first seeking professional, individualized counsel

based upon your own circumstances. The hiring of a lawyer is

an important decision that should not be based solely upon

advertisements. Before you decide, ask us to send you written

information about our qualifications and experience.


19April 2015

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According to the New York City Building Congress,

Manhattan is poised to add roughly nine million

square feet of new office space to its inventory

between 2013 and 2015. If realized, this would be

the highest volume of new office space added to New

York City over any three-year period since 1990. New

construction, plus renovations to older offices, will

undoubtedly lead to increased activity in all facets

of the New York metropolitan area’s construction

industry. Since most projects encounter delays, in at

least some form, a well-drafted construction contract

that addresses delay damages is critical to keeping a

project on time and on budget.

No-Damage for Delay Provision

A no-damage-for-delay provision is one way to address

delay damages. This type of provision excuses a party

to a construction contract from certain liabilities that

it would otherwise incur in the event of a project

delay. Owners often use no-damage-for-delay clauses

to shield themselves from unexpected increased

costs that arise as a result of project delays. In return,

contractors also often include such clauses to protect

themselves from similar exposure in their subcontracts.

Recently, the City of New York introduced a new no-

damage-for-delay clause in its standard construction

contract that makes it easier for contractors to claim

delay damages.

New York’s highest court affirmed the enforceability

of no-damage-for-delay clauses in Corinna Civetta

Constr. Corp. v. City of New York, but also outlined

certain exceptions to their use whereby a contractor

would be permitted to recover damages. The four

exceptions are: (1) delays that are uncontemplated

at the time of contract; (2) delays so unreasonable

they amount to abandonment of the contract; (3)

delays caused by breach of a fundamental obligation

under the contract; and (4) delays due to bad faith,

fraudulent misrepresentation or willful or grossly

negligent conduct. 67 N.Y.2d, 502 N.Y.S.2d 681 (1986).

In a separate case, New York’s highest court also made

it clear that any type of clause that limit one’s liability

for willful or grossly negligent acts is void under public

policy. Kalisch-Jarcho, Inc. v. City of New York., 58

N.Y.2d 377, 461 N.Y.S.2d 746 (1983).

Since Corinna, New York courts have revisited the

question of how narrowly these exceptions should be

interpreted several times. In Plato Gen. Constr. Corp. v.

Dormitory Auth. of State of New York, a no-damage-

for-delay clause was difficult to defeat by invocation

of an exception. 89 A.D.3d 819, 932 N.Y.S.2d 504 (2d

Dep’t 2011), app denied 19 N.Y.3d 803, 946 N.Y.S.2d

106 (2012). In Plato Gen. Constr. Corp., Plato (the

contractor) contracted to work on renovations at

the Brooklyn College Library for the Dormitory


the Legal and Financial Consequences of Moving to a More Contractor Friendly no-Damage-For-Delay Clause

BY ADAM J. PAternO, esq. AnD CArL OLiveri, grAssi & CO., CPAs


21April 2015

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Authority of the State of New York (DASNY). Due to a

number of owner and non-owner caused delays Plato

completed renovations on the library over 17 months

after the anticipated completion date. As a result,

Plato, believing the delays were primarily caused by

the actions and inactions of DASNY, sued DASNY to

recover approximately $16 million in delay damages.

Relying on the no-damage-for-delay clause, DASNY

denied liability and counterclaimed for approximately

$400,000 in liquidated damages measured from the

completion date to the date the library was turned

over, less a 115-day extension granted by DASNY

through the approval of change orders submitted

by Plato. On appeal, the Court held that Plato’s

allegations regarding DASNY’s failure to properly

schedule and coordinate the work amounted to

poor planning and administration, which in and of

itself would not defeat the enforceability of the no-

damage-for-delay clause. The Court also held that

the project’s change-order requirements meant that

the parties had contemplated delays at the time of

contract and evidence of concurrent delays presented

at trial further precluded recovery by Plato. The Court

concluded that Plato was not entitled to an award of

delay damages and awarded DASNY $179,000 on its

counterclaim.

Contractor Friendly No Damage for Delay Clause

Up until the end of last year, the City of New York’s

standard construction contract also contained a

stringent no-damage-for-delay clause. However, the

City of New York and its various agencies are now using

a new standard construction contract that contains a

no-damage-for-delay clause that is more contractor-

friendly that provides for nine circumstances that

entitle the contractor to delay costs. Some of the more

notable circumstances are:

• extended delays caused by the City in reviewing

or issuing change orders, or in reviewing and

approving shop drawings or delays resulting from

the cumulative impact of multiple change orders,

if such delays have a verifiable impact on Project

costs;

• Extended site unavailability that significantly

affects the scheduled completion of the Contract;

• Differing site conditions not reasonably

ascertainable on a pre-bid inspection of the Site

or review of the bid documents or other publicly

available sources and not ordinarily encountered

in the geographical area of the site or the type of

work being performed; and

• Failure of the City to take reasonable measures to

coordinate and progress the work.

In doing so, the City incorporates more than just

the four exceptions to enforcement of no-damage-

for-delay clauses enunciated in Corrino Civetta, a

welcomed change for contractors.

Moving to a more contractor-friendly no-damage-

for-delay clause carries a number of financial

consequences for both parties. In the absence of an

owner-friendly, stringent no-damage-for-delay clause,

contractors will no longer have as great of a need

to factor in contingencies for such costs, which may

incentivize contractors to undertake projects in a more

efficient manner. Alternatively, contracts that include

clauses for shared savings, milestone awards and

other contract specific incentives, will better position

contractors to proactively make timely decisions that

lead to delivering projects on time and on budget.

Moving away from an owner-friendly no-damage-



23April 2015

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for-delay clause may also lead to fewer illegitimate

or frivolous claims by contractors, increasing the

likelihood that those claims that are made will be

legitimate, opening up dispute resolution resources

and allowing all parties to focus on assessing actual

losses.

As some private owners have already learned, using a

more contractor-friendly no-damage-for-delay clause

carries benefits as well. First, there will be less initial

cash outlay by owners, enabling them to control and

monitor funds more closely. This will improve the bid

process by lowering costs and allowing proposals to

reflect true project costs. Another potential benefit

to owners is that premium construction firms may

be enticed to re-enter the market, giving owners an

opportunity to work with name brand contractors and

subcontractors as well as to build their resumes with

stronger contractors and higher profile projects.

From the external audit perspective, there are various

benefits from moving away from an owner-friendly

no-damage-for-delay clause. When undertaking the

cost confirmation process, there are usually instances

whereby the owner and contractor may not agree

to an adjusted contract value, amount billed to date

and corresponding receivable balances. In order to

reconcile these discrepancies, an outside auditor has

to undertake a number of procedures that can be

time consuming and a drain on the internal resources

needed to obtain the proper documentation, resulting

in additional audit fees. Moving away from a stringent

no damage-for-delay provision may make owners

more inclined to respond to the cost confirmations

and agree to the contractor’s figures. Lastly, taxpayers

and other end-users may benefit from this move as

the flow through cost to the public for infrastructure,

private office, residential or any other project will

likely be lower.

As Manhattan enters another construction boom,

the City’s move away from an owner-friendly no-

damage-for-delay could not have occurred at a better

time. Overall, the authors of this article believe that

the City’s move is a welcomed development for all

parties, but especially for contractors. As some private

owners have already learned, allowing recovery for

certain delay items is likely to lead to less litigation and

more equitable outcomes, leaving all parties better

positioned to compete in an increasingly competitive

marketplace.

About the Authors:

Carl Oliveri is a Partner and the Construction

Practice Leader at Grassi & Co. Carl possesses over

15 years of experience working with clients in the

Construction Industry, particularly with regards to

financial statement preparation (audit, reviews and

compilations), income tax preparation, cash flow and

operations forecasting as well as litigation and cost

claim support with related negotiations. Carl can be

reached at [email protected].

Adam J. Paterno is an Associate in Holland & Knight’s

New York office practicing in the area of commercial

litigation, with a concentration in construction law.

In particular, Mr. Paterno has significant experience

representing large academic, medical and commercial

institutions and advises clients on a wide array of

public and private projects. Adam can be reached at

[email protected]


25April 2015

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135 Crossways Park Drive, Suite 201, Woodbury, New York 11797 | Tel: 516.681.1100 | Fax: 516.681.1101 | www.kdvlaw.com

Jason LangeAssociate

Muhammad IkhlasAssociate

Matthew MineroPartner

Andrew RichardsPartner

Chair of KDV’s Construction Practice

Kaufman Dolowich & Voluck Is A Full-Service Litigation Firm That Understands Your Business Needs

In today’s business climate, companies face risks on a variety of fronts when a dispute arises. Our attorneys are proactive, pragmatic and result-oriented. We always act in the best interests of our clients and strive to achieve favorable results whether

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Construction Law

▪ Contract Drafting and Negotiation ▪ Construction Defect Litigation ▪ Claims, Litigation, Arbitration and Mediation

- Breach of Contract - Extra Work - Wrongful Termination - Performance and Payment Bond - Non-Payment - Defective Work - Mechanic’s Lien - Delay Claims

Commercial Litigation

▪ Real Estate Claims and Disputes ▪ Fidelity and Surety

Labor & Employment Law on Behalf of Management

▪ Wage and Hour Litigation and Compliance ▪ Collective Bargaining and Negotiations ▪ Human Resources Counseling and Training ▪ Employment Agreements ▪ Risk Management ▪ Union Arbitrations and Grievances ▪ Whistleblower and Retaliation Claims

Jeffery A. MeyerPartner


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4 6 T H A N N U A L

CONSTRUCTION AWARDS DINNERSATURDAY, MAY 9, 20157:00PMGLEN ISLAND HARBOUR CLUBGlen Island Park, New Rochelle, New York

CELEBRATE WITH US and Honor the Accomplishments of Our 2015 Industry Leaders

THE MICHAEL MAZZUCCA LIFETIME ACHIEVEMENT AWARD

MILO E. RIVERSO

STV Group, Inc.

THE SILVER SHOVEL AWARD

DAVID WORSLEY

Silverstein Properties

THE RONALD BERGER SUBCONTRACTOR OF THE YEAR AWARD

WEIR WELDING

RESERVE YOUR SEATSMake your table reservations early. Seats are $500 per person. A table of 12 is $6,000. Business attire.

SPECIAL “THANK YOU” INCENTIVEFor every $5,000 or more of solicited journal advertising or dinner reservations, you will receive a free dinner ticket.

SUPPORT OUR AWARDS JOURNALThe 46th Annual Construction Awards Dinner Journal will be exclusively offered electronically. Ads should be emailed to Samantha at [email protected] PAGE: $1,250GOLD PAGE: $800FULL COLOR: $600Journal advertisement dimensions are 10” x 7.5”

FEATURED POSITION - $2,750Featured ads will be placed in preferred positions and run more frequently in the electronic journal. Feature advertisers will also have their logos positioned within the ad journal in addition to their advertisement.

JOURNAL DEADLINE IS MAY 6, 2015Ads will be displayed on the evening of the dinner. The journal will also be available on the STA website following the event.

CLICK HERE FOR FULL INVITATION

EVENT CONTACT Call Samantha Sweeney at 212.398.6220 or email her at [email protected].

THE BUILDER OF THE YEAR AWARD

SCOTT DEMATTEIS

DeMatteis Construction Corp

WEIR WELDING

27April 2015


the stA is Moving Offices!

The STA will be moving offices as of May 1, 2015, and will be co-locating with the Building Trades Employers’

Association (BTEA).

Please make note of the new address:

1430 Broadway, Suite 1106

New York, NY 10018

The STA’s phone numbers and emails will be staying the same:

Phone: 212-398-6220

Fax: 212-398-6224

General Information Email: [email protected]

Please contact the STA with any questions.


new Members!

The Subcontractors Trade Association is proud to welcome its newest members, Kelly Masonry Corporation and

Gem Roofing & Waterproofing Corporation.

Kelly Masonry Corporation

Masonry Contractors

366 Sagamore Avenue

Mineola, NY 11501

516-739-8110

[email protected]

Gem Roofing & Waterproofing Corp.

Masonry Contractors

1414 Summit Avenue

Union City, NJ 07087

201-862-7673

[email protected]


subcontractors trade Association 1430 Broadway Suite 1106 New York, NY 10018T: 212.398.6220 F: 212.398.6224e-mail: [email protected] website: www.stanyc.com OfficersRobert J. Ansbro President The New York Roofing Company Robert Weiss 1st Vice President A.J. McNulty & Co. Inc. Peter Cafiero 2nd Vice President Island Painting John A. Finamore Treasurer Jordan Panel Systems Joseph Leo Secretary Atlantic Contracting & Specialties, LLC

Hank Kita Executive Director Subcontractors Trade Association Henry Goldberg Legal Counsel Goldberg & Connolly Active Past PresidentsGreg S. Fricke, Jr.Leonard Powers, Inc. Jerry LissA. Liss & Co. Inc. Alan Nathanson (Honorary)Forsythe Plumbing & Heating Corp. Lawrence RomanWDF, Inc. Arthur RubinsteinSkyline Steel Corp.

Robert SamelaA.C. Associates Gary Segal (Honorary)Five Star Electric Corp. Lawrence WeissA.J. McNulty & Co., Inc.

Scott RivesWoodworks Construction Co, Inc. Board of DirectorsJoseph Azara Jr. C.D.E. Air Conditioning Christine Boccia JD Traditional Industries Dan J. DeVita Penava Mechanical Corp. John Dierks Dierks Heating Company, Inc Andrew Drazic ATJ Electrical Brent Fleisher Environet Systems James Flynn Independent Temperature Control Patrick Gallagher BP Mechanical Corp. Stephen Gianotti Arcadia Electrical Co., Inc. Sandra Milad Gibson Milad Contracting Corporation

Craig Gilston Gilston Electrical Contracting Gloria Kemper Recon Construction Corp.

Randy Rifelli United Iron, Inc. Guy VandeVaarst Firecom Inc. John Villafane Eldor Electric

Upcoming events

STA 46th Annual Construction Awards Dinner: Saturday, May 9, 7:00pm

Annual STA General Membership MeetingWednesday, June 17

trengthen New York’s construction industry

each member firms to increase business opportunities

dvocate to preserve subcontractors’ rights

O U R M I S S I O N S TAT E M E N T

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Manhattan Long Island212-661-6166 516-256-3500www.grassicpas.com

find the balance to gain a competitive edge

For more than 30 years, Grassi & Co.’s Construction Practice has been assisting contractors, engineers, suppliers and distributors minimize their tax liability, uncover potential savings, and build a successful future.

sta april 2015 newsletter

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