Posted on Mon, Aug 29, 2011
Traditionally, New York Construction Law sets separate rules of engagement for public projects (where the owner is a public entity) and those that are private construction projects (where the owner is a private individual or corporation). Given these two distinct camps, it has been easy to classify a project as either a public project or a private one. For contractors, subcontractors and suppliers, knowing which rules of engagement pertain to them is essential to avoid making costly mistakes.
However, the clear distinction between private and public projects is now being blurred through recent 'hybrid' arrangements, which seek to combine aspects of private and public construction works in a single project. This creates a new grey area where these formerly separate formats overlap. As a result, the determination of whether the project is a federal public project, a state public project, or a private construction project has become a complex legal quandary.
These grey areas arise through the use of:
Extended Use Leasing (EUL) – Under Congressional authority, the military has been provided greater flexibility in leasing military property for maximized value, and allows for the leasing of federal property for private development.[1]
Public-Private Partnerships (PPP) – A contractual agreement between a public agency (federal, state or local) and a private sector entity. Through this agreement, the skills and assets of each sector (public and private) are shared in delivering a service or facility for the use of the general public.[2]
Federal Lease-Backs – A contractual agreement allowing a public entity to benefit from tax deductions normally available only to the private sector. Typically the public owners sell real property to private investors and simultaneously lease it back. The private entity puts equity into the property and in return gets rental payments and the tax benefits of ownership, which include interest deductions, depreciation deductions and, occasionally, investment tax credits.[3]
Although these ‘hybrid’ situations may indeed present attractive features for both the public and private sectors, there are potential risks to the private contractor, subcontractor, or supplier should the project or payments run into problems.
For example, should the contractor perform and fail to be paid for its work under New York Construction Law, in the traditional private context, the contractor may be able to pursue its claims under numerous theories, such as breach of contract, or to file and foreclose upon its mechanic’s lien. In a hybrid situation, in contrast, the contractor may be barred from filing an action against the federal or state government under the doctrine of sovereign immunity.[4],[5].
Further, as these types of hybrid projects may be located on federal property, state law may not apply, including those laws that provide the contractor, subcontractor and supplier protections under the New York Lien Law[6], or the New York Prompt Payment Act[7].
“Evaluating the applicability of such state laws to public-private partnerships would require a two-step analysis: First, a determination of whether the project is located on a federal enclave and, second, an interpretation of the state statute’s coverage by its own language… Thus even if not on federal land, a hybrid project may not be subject to (state) statute.”[8]
As the combination of public and private interests continue to develop through the use of the Enhanced Use Leasing, Public-Private Partnerships, and Lease-Backs, a precedent will be established through caselaw. This precedent will provide rules for contractors, subcontractors and suppliers to work under these formats with an understanding of their risks and protections. Until that time occurs, however, careful analysis of all the federal, state, and private rights, remedies and restrictions is required.
Your comments and 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 (516) 462-7051.
[1] See 10 U.S.C. § 2667(a)
[4] Generally, without the federal or state governmental agency waiving its sovereign immunity rights, no action may be brought against it. See Gray v. Bell, 712 F.2d 490, 507 (D.C. Cir. 1983).
[7] N.Y. Gen. Bus. Law §§ 756 et seq.(private); N.Y. State Fin. Law §§ 139-f, 179-f (pt. of Art. 11-A);
Pub. Auth. Law § 2880, Gen.Mun. Law § 106-b; Hwy.Law § 3 8; NYC Procurement Policy Board Rules § 4-06. (public).
[8] Robert F. Carney & Lisa D. Sparks, Is It Public or Not? Whiteford Taylor Preston, Construction Update Summer 2010.
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, Aug 25, 2011
Under New York construction law, much emphasis is placed on the “improvement” of real property (real estate). Indeed reference to improvements are often found in New York construction contracts, and establishing an improvement is required for a contractor to establish a valid lien on a privately owned project.
For a party to be eligible for lien rights in New York, their labor must have improved the real property, pursuant to §3, New York Lien Law. The Lien Law defines improvement as “the demolition, erection, alteration or repair of any structure upon, connected with, or beneath the surface of, any real property and any work done upon such property or materials furnished for its permanent improvement.”[i] (emphasis added).
For example, the list of work qualifying as an improvement is continually growing and expanding through court interpretation. The drawings (including preliminary drawings) produced by architects, engineers, and surveyors are deemed improvements.[ii] Lighting fixtures are considered improvements, but light bulbs are not an improvement.[iii]
The reasonable rental value of equipment and trailers actually used on the work,[iv] the value of compressed gasses used by welders on the work, as well as the value of fuel and oil used by machinery at the construction site are all considered improvements and may be claimed in the value of a lien.
The mere acceptance of construction debris, however, at a disposal yard is not deemed to be an improvement establishing lien rights to property.[v] Similarly, neither does the installation of modular workstations, where the contractor “did not demolish, erect or alter any structure, or perform work or furnish materials for its permanent improvement.”[vi] (emphasis added).
Through the provisions of the New York Lien Law, as well as numerous cases decided by the courts, the determination of whether work performed qualifies as an improvement or not is largely based on whether the work is intended to be a permanent benefit to the property.
The permanency the courts look to in making the above determination is not necessarily based on a certain number of years for which the improvement is expected to last, however. Permanency in the work is established where the improvement becomes part of the property.[vii]
Courts in New York will also require that, in addition to the work having permanence, the contractor is also required to substantially complete their contract work. If the work performed for which a lien is sought is not substantially complete, or has been completed below industry standards, the lien will be vacated.[viii]
Your comments and 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 (516) 462-7051
[i] N.Y. Lien Law § 2(4).
[ii] In re Bond & Mortg Guarantee Co, Guarantee No 185, 958, 282 A.D. 959, 126 N.Y.S.2d 199 (2d Dep’t 1953).
[iii] Waring v. Burke Steel Co., 69 N.Y.S.2d 399 (Sup 1947).
[iv] P.J. Carlin Constr. Co. v. A to Z Equipment Corp., 31 A.D.2d 546, 295 N.Y.S.2d 239 (2d Dep’t 1968).
[v] Claudio Perfetto, Inc v. Waste Management of New York, LLC, 274 A.D.2d 389, 710 N.Y.S.2d 120 (2d Dep’t 2000).
[vi] Negvesky v. United Interior Resources, Inc., 32 A.D.3d 530, 821 N.Y.S.2d 107 (2d Dep’t 2006).
[vii] Sica & Sons, Inc., v. Ciccolo, 39 Misc. 2d 698, 241 N.Y.S.2d 923 (County Ct. 1963).
[viii] New Day Builders, Inc., v. SJC Realty, 219 A.D.2d 623, 631 N.Y.S.2d 707 (2d Dep’t 1995).
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, Aug 22, 2011
The Appellate Division of the New York Supreme Court, on August 4, 2011, upheld the ruling of the trial court, in the matter of Jeremy Morris v. C&F Builders et al., which effectively limits contractor liability for violations of Labor Law §§ 200, 240, and 241, to situations where the contractor has control over work to be performed, and has the ability to enforce safety standards on the worksite.
This matter originally began when an electrical contractor's employee was injured at a jobsite where an opening for a future staircase was not partitioned off and the employee fell through the floor opening.
The injured employee brought claims including violations of Labor Law §§ 200, 240, and 241 against C&F Builders, the framing contractor. On appeal, the court clarified that "the absolute liability imposed upon owners and general contractors pursuant to Labor Law § 240 (1) and § 241 (6) does not apply to prime contractors having no authority to supervise or control the work being performed at the time of the injury." (Emphasis added)
As the framing contractor here had no control over plaintiff's work, and had no duty to enforce safety standards at the worksite, the decision of the trial court in dismissing these claims against the framing contractor was correct.
This ruling further affirms under New York construction law that liability cannot be imposed under Labor Law where a defendant lacks "the authority to control the activity bringing about the injury."
Your comments and 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 (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, Aug 18, 2011
Recently, a contractor asked me how to create a good contract. After further discussion, I understood that this contractor was not licensed, but wanted advice on obtaining a good contract.
Well, what is a good contract after all? Is a good contract one that considers and anticipates issues, which may develop on the construction site? Is a good contract one that establishes an agreeable compensation for the work?
Although parties are free to enter into any contract, the correct question to ask is not whether you can have a good contract, but rather whether a court will enforce the contract. After all, the value of a good New York construction contract will be similar to the value of an insurance policy. You will learn how valuable or effective it is only when you call upon it to perform.
In New York, the enforceability of an unlicensed contractor's contract has long been established under the law. Under the New York City Administrative Code, § 20-385, an unlicensed contractor is barred from seeking payment from the owner, and in the absence of any balance owed to the contractor from the owner, any unpaid subs must look to the contractor for payment of work performed.
This provision of the New York City Administrative Code has been supported and affirmed in numerous court matters. An unlicensed contractor may neither enforce a home improvement contract against the owner or seek recovery for the benefit provided to the owner from its work. See B&F Bldg. Corp. v. Liebig 76 N.Y.2d 689, 563 N.Y.S.2d 40.
"The purpose of the licensing requirement ... is to 'safeguard and protect the homeowner against abuses and fraudulent practices. The requirement of obtaining such a license is clearly not a ministerial act or mere technicality.' Furthermore, a contractor is barred from enforcing a contract if its license is not issued until after the work is completed." Blake Electrical Contracting Co. v. Paschall 222 A.D.2d 264, 635 N.Y.S.2d 205 citing B&F Bldg. Corp. v. Lieblig.
So, to answer your question, a good construction contract in New York starts with obtaining all licenses required for the work anticipated. Otherwise, even the best-drafted contract will be refused enforcement by the courts.
Your comments and 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 (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 Tue, Aug 16, 2011
New York’s largest solar energy farm, a 153-acre site at the Brookhaven National Laboratory, is nearing completion. The site was selected for its proximity to an existing LIPA substation, to allow direct supply of the generated electricity without the need for inefficient transport of the energy over long distance, and for its proximity to Brookhaven National Laboratory, to allow for study of the solar arrays [i].
The sprawling array, which came with a $300 million budget, is expected to generate 32 megawatts of energy to the LIPA grid. This will provide enough energy for 4,500 homes and provide many Long Island construction jobs. Completion of this project comes just as the solar panel manufacturer, BP Solar, announced its intent to leave the market in selling solar cells, and move its focus to developing its own projects.[ii] (See also, Is the Sun Setting on American Solar Production, for more on this trend).
All environmentalists did not welcome the announcement of this solar project, as the planned solar farm would require the removal of an estimated 42,000 trees from the site. “It seems to me they could have found a far better place to have this solar farm, where they wouldn’t have to cut down these trees.”[iii]
The ultimate approval for this project was achieved when LIPA agreed to invest $2 million to preserve other land in the Pine Barrens to compensate for the value of the project land. LIPA further justifies the overall environmental benefit, as the project will prevent the production of 30,950 metric tons of hydrocarbon emissions a year, where the carbon dioxide reducing capacity of the lost trees is just 842 metric tons per year.[iv]
Is this a fair trade off? Are Long Islanders and the Long Island environment better off having had this solar farm completed?
Your comments and article topic suggestions are invited in the field below.
The author, John Caravella Esq., is a construction attorney and former 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 via email at
John@LIConstructionLaw.com or (516) 462 – 7051.
[i] Brookhaven researchers will be able to tap into real-time data from the array, examination of how clouds affect power production, and development of models to forecast solar output
[iv] LIPA figures as stated by Mark Harrington in Trees Uprooted at Brookhaven Lab for BP Solar Project, Newsday Nov. 29, 2010.
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, Aug 11, 2011
Each year the New York State Legislature enacts dozens of new statutes, which alter various phases of construction. Currently, there are numerous proposed bills that may impact New York contractors and subcontractors in the next year.
Some of the significant proposed changes include new requirements for home improvement contractors, changes to construction contract enforcement, and changes to retainage procedures.
- Bill A00934 "An act requiring home improvement contracts provide notice to owners if the contractor uses the services of a subcontractor."
Under this bill, home improvement contractors will be required to provide owners with written notice, prior to the commencement of any work, disclosing the name, address, telephone number and license number of any subcontractor that may perform any part of the work.
- Bill S03183 “An act to make Indemnification Agreements relating to construction contracts void as against public policy.”
As by their nature Indemnification Agreements seek to have one party agree to be primarily liable for damages, which may be caused by the other, thereby causing one party to be held harmless. These contract provisions are in conflict with the greater public safety considerations that are advanced when parties are responsible for themselves.
Such examples of liability shifting will be prohibited in agreements “relating to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances, including moving and excavating.”
- Bill S03182 "An act to provide for laborers or materialmen on state public improvement projects to sue on the bond(s) required to be posted by the contractor or subcontractor."
This bill seeks to amend the state finance law to allow for laborers and materialmen to be included in the protection of bonds posted by the contractor or subcontractor on a state public improvement project until one year from acceptance of the completed project by the public owner.
- Bill A08473 “An act prohibiting the retention of any payment due and owing a material supplier for a construction project on public works projects.”
This bill seeks to make several modifications to the state finance and general municipal laws, which would remove from retainage any payments due a supplier for supplies and materials incorporated into the project.
Once the contractor or subcontractor has accepted the materials, the supplier has essentially completed their scope of the work. These proposed modifications seek to clarify that concept as well as remove materialmen from current retainage laws.
- Bill A01035 "An act to require the registration of home improvement contractors and for the creation of a home improvement trust fund."
In an additional step to help minimize the ability of unscrupulous home improvement contractors in certain portions of New York state, this bill will require home improvement contractors to register biennially with the Consumer Protection Board and either post bonds ranging from $10,000 through $50,000 or provide the payment of a $200 fee.
The home improvement trust fund is to provide consumers, upon receipt of a judgment, a faster and reliable means for receiving compensation for their troubles.
Your comments 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 (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, Aug 08, 2011
Each year the New York State Legislature enacts dozens of new statutes, which alter various phases of construction. Currently, there are numerous proposed bills that may impact New York contractors and subcontractors in the next year.
Some of the significant proposed changes include allowing the contractor to stop performance upon outstanding change orders, new escrow deposit requirements to cover damage to neighboring properties, new owner ability to deposit retainage funds in escrow and requirements prohibiting home improvement contractors from working on behalf of mortgage companies.
- Bill S03414 "An act to amend the state finance law in relation to contract change orders."
Under this proposed bill, during the course of construction, where the total cost of all unapproved change orders exceed 10% of the original contract (or subcontract) amount, the contractor (or subcontractor) shall not be required to commence or continue the work until the proposed changes have been approved by the public owner.
- Bill S00991 "An act requiring developers to deposit a portion of the total estimated project cost into escrow account for damage caused to neighboring properties and for work on a project to be stopped until repairs are made to adjoining properties."
This bill seeks to amend the administrative code of the City of New York to require developers to deposit 10% of the total estimated project cost in an escrow account, used to settle claims of property owners whose property is damaged during any construction or the claim of tenants who are displaced.
"A developer shall be held strictly liable for any damage or relocation expense that occurs as a result of the construction. If any damages occur to an adjoining property, any and all work on such project shall be stopped until such damaged property is repaired."
- Bill A00903 "An act requiring contractors in certain cities to recycle construction and demolition site waste."
This bill will require contractors in cities having a population of one million or more to recycle 50% of the waste generated on construction and demolition sites. This bill defines the types of projects that would be subject to this recycling requirement, the phase-in period, as well as providing penalties for violations.
- Bill S03189 "An act allowing an owner to retain reasonable amounts of the contract as retainage by depositing same in a separate interest bearing escrow account with a third party escrow agent."
This bill will provide, by mutual consent of the parties, the ability of the owner of any non-public construction project to deposit into a third party escrow account a 'reasonable amount' of the contract sum. The third party escrow agent is to release the retainage, upon owner's written authorization, no later then 30 days after final approval of the work.
- Bill A0193 "An act prohibiting home improvement contractors from acting on behalf of mortgage brokers."
In an effort to prevent home improvement contractors from coercing people to obtain loans for what are often unnecessary repairs, this bill seeks to shield the buyers and hold the sellers accountable. This bill also seeks to prevent the making of secondary mortgages for these types of home improvements as they can cause a loss in home ownership.
Your comments 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 (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, Aug 04, 2011
Each year the New York State Legislature enacts dozens of new statutes, which alter various phases of construction. Currently, there are numerous proposed bills that may impact New York contractors and subcontractors in the next year. Some of the significant proposed changes include new disclosure requirements for contractors, changes to construction contract enforcement and changes relating to subcontractor liens on residential properties.
1. Bill A00105 “An act to address continuing problems of consumers hiring unscrupulous contractors that improperly build new homes, construct home additions or other improvements to residential properties.”
This bill proposed to make various changes and alterations to the General Business Law and the Lien Law to protect consumers from having liens filed from subcontractors when the owners have already paid the contractor for the sub’s work on the property. Specifically this bill is intended to protect elderly or otherwise vulnerable homeowners from growing unscrupulous contractor activities in portions of New York State.
2. Bill A02253 “An act for the licensing of general contractors in New York City.”
This bill proposes to establish an additional Article to the General City Law to provide for the licensing of general contractors and permitting other cities to enact a local law doing the same.
This bill further provides a definition for the term “contractor,” provides for a misdemeanor criminal violation for the advertising without a license, the assessing of fines for violations of these sections, including potential forfeiture of property. Additionally, contractors under this bill will now be charged with providing homeowners disclosure of the homeowners’ rights prior to signing any contracts for the work.
3. Bill S03183 “An act to make Indemnification Agreements relating to construction contracts void as against public policy.”
As by their nature, Indemnification Agreements seek to have one party agree to be primarily liable for damages, which may be caused by the other, thereby causing one party to be held harmless. These contract provisions are in conflict with the greater public safety considerations that are advanced when parties are responsible for themselves. Such examples of liability shifting will be prohibited in agreements “relating to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances, including moving and excavating.”
4. Bill A08473 “An act prohibiting the retention of any payment due and owing a material supplier for a construction project.”
This bill seeks to make several modifications to the state finance and general municipal laws, which would remove from retainage any payments due a supplier for supplies and materials incorporated into the project. Once the contractor or subcontractor has accepted the materials, the supplier has essentially completed their scope of the work. These proposed modifications seek to clarify this concept as well as remove material men from current retainage laws.
5. Bill A06023 “An act requiring background checks for employees of contractors under certain state contracts.”
This bill proposes to have employees of contractors under certain state contracts be required to undergo background checks where state employees would otherwise be required to undergo background checks.
your comments are invited in the field below.
The author, John Caravella Esq., is a construction attorney and former 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 via email at John@LIConstructionLaw.com 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, Aug 01, 2011
Most insurance policies, especially CGL (Commercial General Liability) policies, place certain obligations on the insured, which must be satisfied before the insurance company is obligated to cover a loss. Therefore, it's important to know what circumstances could cause the insurer to deny coverage. The below is an examination of the typical insured obligations for common policies and how you can ensure you will have coverage when you need it.
- Premiums Although this may be obvious, payment of premiums is required before a claim can be considered covered. It is smart business practice for construction companies to maintain a company calendar, listing the expirations of all licenses, insurance policies, leases, etc., as well as to plan ahead for timely renewals. By statute here in New York, insurers must give notice of cancellation due to non-payment prior to cancellation becoming effective.
- Notice An insured's duty to timely report an occurrence is distinct from its duty to report a claim (American Tr. Ins. Co. v. Sartor, 3 NY3d 71, 75 [2004]). Most policies include provisions stating how and when the insured must give the insurer notice of an accident, occurrence, claim or potential claim.
Typically, with respect to an accident or occurrence, which may give rise to a claim, the insured must provide notice to the insurer 'as soon as practicable after such an occurrence.'
Where an insured is provided notice of an actual claim, the duty typically imposed on the insured shifts to providing notice 'immediately upon knowledge of a claim.'
The manner in which notice is to be provided is usually stated. Typically written notice is to be provided within a stated number of days. In New York, such notice provisions are routinely enforced and a failure to comply with the notice provision without valid excuse will relieve the insurer of its obligation under the policy for that claim (Security Mut. Ins. Co. of New York v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76(1972).
The duty to provide notice, however, is more than just an obligation to notify. Under most policies, the insured is also required to promptly forward all legal documents in relation to the occurrence. While failure of the insured to comply will not automatically relieve the insurer from coverage, it does allow for the insurer to be removed from coverage if the insurer can also establish that it has been prejudiced or harmed by the late service of such documents.
- Cooperation in the Investigation and Defense of Claims It is the insured’s duty to assist in the gathering of documents, photos, witnesses, plans, specifications and correspondence related to a claim. The insured is also commonly expected to participate in any depositions, hearings, trials as may be required.
Following the above will ensure that an insurance provider will not have grounds to escape coverage because of any failure on the part of the insured's to comply.
It would also be wise to not only review your entire insurance policy upon the happening of an occurrence, but also to preserve your rights to sue your insurer should they fail to provide proper coverage. As soon as an occurrence occurs which could result in a claim, review your policy and calendar when a proof of loss must be filed and when an action must be commenced.
Your comments are invited in the field below.
The author, John Caravella Esq., is a construction attorney and former 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 via email at John@LIConstructionLaw.comor (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.