Posted on Wed, Nov 30, 2011
The U.S Green Building Council – Long Island Chapter will be hosting its Annual Holiday Event on Tuesday, December 6, 2011 from 6:00 - 9:00pm at Carlyle on the Green at Bethpage State Park.
The Long Island construction community is invited to come together with members of the USGBC-LI to celebrate the season and to discuss interests and activities in the green construction movement.
Further details and registration information for this event can be found here.
With membership to the Chapter, admission is free. Admission fee for guests includes hors d’oeuvres. Anyone with an interest in connecting with the green construction movement on Long Island is invited to attend this event.
This is an open networking forum for members and professionals to share ideas with members of the board and other chapter members. The evening will provide an opportunity to share ideas and learn more about the importance and positive impacts of Building Green on Long Island through Sustainable Design.
Past events have been successful gatherings for the different committee members of the Long Island Chapter to speak face to face, and also for meeting and speaking with members of the Long Island Construction Community.
If you have been curious about learning more about the USGBC-LI, or the Green Construction movement, you are encouraged to come join us for this informal cocktail hour.
Posted on Sun, Nov 27, 2011
A recent holding of the First Department of the Appellate Division prevented discovery of a plaintiff’s Facebook page, but not for reasons supporting the plaintiff’s selected Facebook privacy settings.
This New York construction litigation matter began when the plaintiff claimed numerous injuries suffered in a personal injury action against Turner Construction Company. In response, the defendant sought to use plaintiff’s account to establish the plaintiff was misrepresenting his claimed injuries.
It is becoming more common in workman’s compensation and personal injury litigation matters for attorneys to seek the use of a party's own Facebook page contents and postings as evidence to disprove the severity of injuries claimed.
A 2010 New York State Supreme Court, Suffolk County matter where a woman claimed to be bedridden after suffering an injury was found standing and smiling in Facebook posted photographs. The injured woman was ordered to provide the defense with access to the private portions of her Facebook account.
“The postings on plaintiff’s online Facebook account, if relevant, are not shielded from discovery merely because plaintiff used the service’s privacy settings to restrict access … just as relevant matter from a personal diary is discoverable.”
This prior rationale was cited by Justice Jeffrey Onig in his October 27, 2011 order preventing full access to the plaintiff’s Facebook account by Turner Construction Co.
“[W]e reverse and remand for a more specific identification of plaintiff’s Facebook information that is relevant, in that it contradicts or conflicts with plaintiff’s alleged restrictions, disabilities, and losses, and other claims.”
On appeal, the request to obtain Facebook information, otherwise protected by the account holder’s privacy settings, was denied not for the privacy settings, but for the request itself being worded overly broad. If the request itself was more specifically tailored to obtaining specific information, it is likely that this request would have been supported by the court.
This recent ruling by the Appellate Division signals that Courts, when considering discovery requests in litigation, are not limited or even effected by the Facebook account holder’s security preference settings. Although these settings may be enough to prevent viewing by some, when a party to litigation those privacy settings may serve little to no benefit when trying to keep such information out of litigation, if the information sought is relevant to the legal action.
A full copy of the decision and order of the Supreme Court, Appellate Division can be found here.
This recent ruling comes amid other debates relating to social media and privacy. Aside from this ruling, Facebook itself has recently enlarged the amount of information that is considered public by default, including the use of an auto-tagging facial recognition feature. This feature has been controversial and in Germany is under investigation for being a violation to that country’s privacy laws.
The threat posed to privacy by these social networks and the expanding realm of public information goes beyond what these networks themselves do, and the question becomes what others are enabled to do with the information.
Your comments and future article topic suggestions are invited in the field below.
The author, John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608–1356 or (516) 462-7051.
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.
Posted on Mon, Nov 21, 2011
Construction in particular adapts and responds to changes as a regular course of business. From changes in codes, regulations, and client preferences, staying abreast of the trends influencing the industry is essential for those who hope to earn their living from it.
Networking has always been an important function to anyone running a business. Whether it be the old fashioned handshake when being introduced to someone at a networking event, or internet based social and professional networking sites, the purpose remains the same; to meet new potential customers, build contacts that you can call on, looking to fill or find job openings, and to promote yourself.
Most, if not all, construction companies run some form of a website. And many may even have used the business networking sites available to all businesses, such as Linkedin, Twitter, or Facebook pages. But opportunities exist for the construction business owner to take their business networking to the next level of productivity, by becoming introduced to business networking cites dedicated exclusively to the construction industry.
Enter C-Source, and CIS Leads. C-Source is a free online network dedicated to the construction industry with numerous features and benefits for the construction business owner. This site was designed for the non-computer expert construction business to efficiently network and make relevant contacts.
“One of our main goals in launching C-Source was to create a networking platform for commercial contractors that was comprehensive yet user friendly, allowing users more time to focus on making connections” says Blair Grant, Client Services Supervisor for C-Source.
The user interface is designed to place all the information the construction business owner would want at their fingertips, and users can make connections with just the click of their mouse. Unlike other professional networking sites, however, C-Source allows the user to customize their search to find contacts that fit a specific need; such as locating SBE’s, MBE’s, WBE’s, Union / Non-Union Work, Bonded, and more.
Additionally, the level and accuracy of construction specific information found there is not replicated on the general professional networking sites, such as LinkedIn. “We have a team of people devoted to making sure all of our information is accurate, so our users have the most updated information about the companies listed in C-Source” says Grant.
The focus of C-Source is local, because the needs of construction business owners are local, and C-Source itself is a local company. This provides the ability for the New York area construction company to better focus its professional networking efforts on the New York area contacts, businesses, and decision makers most important to them.
Construction Information Systems (CIS), on the other hand, has been a leading online provider of project information to the construction industry for twenty years. With the ability to update project information on a daily basis, CIS has been assisting construction companies run better by assuring that they don’t miss a public or private construction job.
CIS Leads offers customized reporting services that covers both public and private sector projects, contractors, and design firms. A tight focus is maintained on the local NY, NJ, PA, and DE market through their use of over 40 reporters and researchers.
In addition to their project lead service, CIS also offers targeted marketing services for the construction business owner who wants to increase their visibility in the crowded New York metro area.
Your comments and future article topic suggestions are invited in the field below.
The author, John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608–1356 or (516) 462-7051.
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.
Posted on Thu, Nov 17, 2011
New York construction law allows for the pursuit and collection of damages for delay, depending on the underlying project facts and contract terms.
Where these claims are available, courts in New York recognize 7 major categories of delay, which may establish claims for compensation.
This free paper download will outline the court recognized delay claims available, and how the courts determine claim values.
With this information the documenting and responding to delay conditions can be made more efficiently for those in New York construction.
Posted on Mon, Nov 07, 2011
Construction is fraught with countless risks, from weather conditions, labor strikes, material unavailability, subsurface conditions, and from inaccurate plans and specifications, among others. Each has the potential to delay the project, cause increased completion costs, and increase the likelihood of disputes, liens, or litigation. Problems stemming from inaccurate plans and specs can quickly become the problems of others beyond just the design professional itself.
It is undisputed that New York construction law imposes primary responsibility for plan and specification accuracy on the design professional itself. The design professional is required to use the degree of skill, knowledge, and judgment ordinarily used by other design professionals in the same geographic area.
However the issue becomes more complicated where an owner has its architect prepare plans and specifications, and provides them to its contractor. As between the owner and the contractor, it is the owner who bears the risk of any deficiencies in the architecturals. This allocation of risk, known as the Spearin Doctrine, stems from the 1918 United States Supreme Court matter of U.S. v. Spearin, 54 Ct. Cl. 187, 248 U.S. 132.[1]
In Spearin, the contractor was constructing a federal dry dock, with the plans and specifications provided by the owner. The plans failed to show a dam, which later failed and caused the dry dock to flood. The Court found that in issuing the plans, the owner extended an implied warranty to the contractor, warranting that the plans and specifications, if complied with, would be adequate for its intended purpose.[2]
Where a contractor has reason to believe that some error, oversight, or defect exists in the plans and specifications provided to it by the owner, the contractor should notify the owner promptly of these claims (preferably in writing). Where such a defect is not noticed by any party until after bidding, the plans would then arguably be defective under the Spearin Doctrine.
The contractor under New York construction law is charged only with constructing the project in conformance with the architecturals, and to point out to the owner any deficiencies in the provided architecturals that it discovers. This does not arise to the contractor having responsibility for any deficiencies it fails to discover.
Your comments and future article topic suggestions are invited in the field below.
The author,
John Caravella Esq., is a construction attorney and formerly practicing project architect at
The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608–1356 or (516) 462-7051.
[1] Not all states follow the Spearin Doctrine,
[2] the Court also found that this warranty could not be avoided by requiring contractor to examine the site, plans, and specifications prior to entering the contract. As such, contractors can typically recover extra costs incurred to overcome design defects
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.
Posted on Thu, Nov 03, 2011
Often owners find themselves wondering if they need an Architect for their project, and might be unfamiliar with terms and forms of contract used. This article provides a refresher on the types of projects an Owner should have an architect, and the typical forms of contracts used.
An architect licensed and registered in New York provides services related to the design and construction of buildings and the spaces around them, where the safeguarding of life, health, property, and public welfare is concerned.[1]
Although there are situations where involving an Architect is discretionary on the part of the owner, generally if new construction, alteration to an existing structure, plumbing, or HVAC is contemplated, construction drawings sealed by an architect will be required by your building department before your project can begin.
Additional factors where hiring an architect makes sence include the following
- Architects think in three-dimensions. If you ask, "Can we move this wall to over there?," an architect will usually respond with an answer that will also state the ramifications to the roof, the foundation, and adjacent walls as well as systems.
- Architects are educated, trained, and licensed to design.
- Architects begin the design of any building or remodel of a building by examining the site or location and its environment.
- Architects have intimate knowledge of building systems, materials, and how these components can work together, conflict, or clash to express different design styles.
- Architects help clients determine their true needs and prioritize their wants.
- Architects act on the owners' behalf, rejecting defective work, bringing into the design process any and all necessary or desired consultants.
- Architects coordinate consultants and their work.
- Architects have professional liability for their work
As a design professional, Architects are typically paid through the use of the following contract types:
- Lump Sum Contract
Under this form of agreement, the designer is paid a predetermined sum for all duties performed, plus any included reimbursable expenses, such as printing. Under these contracts the Owner needs to verify that all of the duties expected of the architect are clearly stated and defined
- Cost Reimbursement Contract
This format compensates the Architect based on its time and expenses incurred. This form of contract should specify the applicable hourly rate(s) being charged by the architectural firm. It is customary for the designer to be provided a retainer upfront, and the owner will receive invoices (usually monthly) thereafter through the architect’s work. It is common for the retainer payment to either be credited to the final invoice or otherwise refunded to the owner at the conclusion of Architect’s work.
- Percentage of Construction Cost
This format compensates the Architect based on the percentage of construction costs. It is important for these contracts to specify how and when the cost of construction is calculated, and typically progress payments will be made to the architect during the work. Percentages charged by Architects in this format can vary from firm to firm, and locale to locale.
Whichever format of contract ultimately used, there are numerous terms that should be reviewed and negotiated properly to provide the level of protections needed and avoid unintended consequences.
With this preliminary information, an Owner is in a much better position to interview architects and further select the architect right for their project. Suggestions for questions owners should consider asking when interviewing an architect will be the topic of a pending article.
Your comments and future article topic suggestions are invited in the field below.
The author, John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608–1356 or (516) 462-7051.
[1] New York State Education Department, Office of the Professions
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.
Posted on Tue, Nov 01, 2011
Many construction contracts in New York make reference to how or why one or both parties are provided the right to terminate the agreement. One such typical form of termination, ‘Termination for Convenience’, may be provided.
Under New York construction law, an owner may be provided the right to terminate by contract, and courts will view this as an absolute right of the owner, and it is wholly enforceable.[1] Further, the owner is not required to act in good faith, and this right remains enforceable even in the Owner’s lack of good faith in its actions.
For a contractor working under a construction contract containing such a provision, the owner is not required to allow the contractor to complete the work, or pay its damages for termination,[2] which can be quite inconvenient to the contractor.
A typical termination for convenience clause provides the Owner the right to “ . . . abandon, postpone, or terminate the work or any part thereof, for any . . . reason, including the failure of the [contractor] and [owner] to agree upon the pricing of the work in accordance with [the contract] . . .” upon proper notice to the contractor.[3]
‘Convenience’ is defined as the ‘quality of being personally convenient or suitable or well adapted to one’s easy action or performance of functions[4]. And similarly, a parties' motives or motivations for such actions are irrelevant.
Recovery for a contractor under a typical termination for convenience clause in New York is generally limited to:
- Actual costs incurred up to the effective date of termination;
- Costs for settling and paying claims arising from the termination; and
- Any rate of profit and overhead on the above allowed by contract.
Such a termination may prove costly and unexpected to any contractor working under such a contract without an understanding of the potential ramifications. Contractors are always encouraged in seeking legal opinion prior to entering any New York construction contracts with unfamiliar terms and conditions to avoid unintended consequences.
Your comments and future article topic suggestions are invited in the field below.
The author, John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608–1356 or (516) 462-7051.
[1] Provided that the Owner is not the federal government. Additional conditions apply to Federal contracts.
[2] Niagara Mohawk Power Corp. v. Graver Tank & Mfg. Co., 470 F.Supp. 1308
[3] Providing written notice to the contractor of termination is required for the convenience clause to be enforceable pursuant to Niagara Mohawk Power Corp. v. Graver Tank & Mfg. Co
[4] G & R Elec. Contractors, Inc., v. State, 130 Misc. 2d 661.
This is a general information article and should not be construed as legal advice or a legal opinion. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.