NEWS & EVENTS
Goldberg & Connolly's Erik A. Ortmann to Moderate Elite CFMA Panel Discussion on January 24, 2012
Goldberg & Connolly is pleased to announce that Erik A. Ortmann, a Senior Associate at the firm, will be moderating an elite panel discussion hosted by the Long Island Chapter of the Construction Financial Management Association (CFMA) entitled, “Long Island’s Economic Outlook – The Experts’ Perspective.” The discussion will take place on Tuesday, January 24, 2012 at 9:00am at the Huntington Hilton at 598 Broadhollow Road, Melville, NY.
The panel discussion will be led by Andrea Lohneiss, Long Island Regional Director of the Empire State Development Corporation, Patrick O’Keefe, Director of Economic Research at JH Cohn, LLP and Marc Herbst, Executive Director of the Long Island Contractors Association.
Panelists will present their views on the economic outlook for 2012 and its implications for public and private construction and development; federal and state funding for projects; attracting and keeping businesses on Long Island; and key opportunities and innovative ideas that can permit Long Island to strengthen and grow its economy.
While faced with significant challenges amid the economic downturn, there are signs of innovation and revitalization which suggest that the Long Island Contracting Community is striving to meet these challenges and is poised for a better future.
Mr. Ortmann is a Senior Associate with Goldberg & Connolly and a member of the firm’s Construction Law and Commercial Litigation Groups. He is on the board of the LI Chapter of the Construction Financial Management Association and is actively involved in the law and legislation committee of the General Contractors Association. He has also served as General Counsel to the NYC/LI Chapter of the National Association of the Remodeling Industry.
As a frequent presenter at industry forums and events on legal matters critical to the public contracting industry, Mr. Ortmann speaks on such topics as M/WBE Good Faith Compliance, The New Prompt Pay Act and Delay Claims.
Mr. Ortmann received his law degree from Hofstra University School of Law in 1994 and is admitted to practice in both state and federal courts in New York State.
For more information regarding the event or to register please contact Debbie at (201) 828-5776 or visit http://chapters.cfma.org/LI/events.htm.
Goldberg & Connolly's Erik A. Ortmann Receives Leed Green Associate Certification
Goldberg & Connolly is pleased to announce that Erik A. Ortmann, Esq.,a Senior Associate at the firm, passed the LEED Green Associate Exam on December 1, 2011, and is now certified as a LEED Green Associate.
The LEED Green Associate credential is attainable for professionals who are looking to demonstrate green building expertise in non-technical fields of practice. The Green Building Certification Institute (GBCI) administers the LEED Green Associate credential examination, which denotes basic knowledge of green design, construction and operations.
Mr. Ortmann is a Senior Associate with Goldberg & Connolly and a member of the firm’s Construction Law and Commercial Litigation Groups. He is on the board of the LI Chapter of the Construction Financial Management Association and is actively involved in the law and legislation committee of the General Contractors Association. He has also served as General Counsel to the NYC/LI Chapter of the National Association of the Remodeling Industry.
As a frequent presenter at industry forums and events on legal matters critical to the public contracting industry, Mr. Ortmann speaks on such topics as M/WBE Good Faith Compliance, The New Prompt Pay Act and Delay Claims.
Mr. Ortmann received his law degree from Hofstra University School of Law in 1994 and is admitted to practice in both state and federal courts in New York State.
Jeffrey I. Scott Joins Goldberg & Connolly's Construction Practice and Construction Litigation Groups
Goldberg & Connolly is pleased to announce that Jeffrey I. Scott has joined the firm as an associate in the Construction Practice and Construction Litigation Groups.
Mr. Scott graduated magna cum laude from Binghamton University in 2007. He received his Juris Doctor from Benjamin N. Cardozo School of Law in 2010 and was the recipient of the prestigious Jacob Burns Medal for scholastic achievement.
Mr. Scott is admitted to practice in New York and New Jersey State Courts, as we as the District of New Jersey, and Southern and Eastern Districts of New York Federal Courts.
Erik A. Ortmann to Speak at DASNY MWBE Forum on October 13, 2011
Goldberg & Connolly Attorney Erik A. Ortmann will be a panelist at the annual DASNY MWBE Forum on Thursday and Friday, October 13 and 14, 2011 in Albany, New York at the Empire State Plaza Convention Center and The Egg.
DASNY's MWBE Forum is the largest statewide business opportunities event for MWBEs. The program attracts over 1000 MWBE firms drawn from construction, architecture and engineering, financial and professional services and commodity suppliers from across New York State. Over 20 other State and City public agencies and authorities also participate and share information about their programs and new business opportunities.
Goldberg & Connolly to Present at CFMA Educational Symposium October 25, 2011
Goldberg & Connolly will present a seminar entitled “Construction Claims First-Aid: Don’t Bleed to Death” at the CFMA Construction Educational Symposium on October 26-28, 2011. The all day educational symposium will be a joint event with the New York City and New Jersey chapters.
Goldberg & Connolly Speaks on Complying with the New DBE and M/WBE Program Requirements and "Best Practices" at AGC Event on Tuesday, May, 24, 2011
Goldberg & Connolly Attorneys Henry L. Goldberg, Erik A. Ortmann and Christopher K. Smith spoke on “Best Practices” for Complying With The New DBE and M/WBE Program Requirements at the Associated General Contractors of New York State (AGC) seminar on Tuesday, May 24, 2011.
Mr. Ortmann discussed certification and requirements, goals, good faith compliance and coordination and communication with agencies and authorities. He also discussed coordination and communication with owners regarding compliance and contract directives to utilize M/ WBE and DBE companies. Mr. Ortmann clarified the distinctions between NYC, NYS and federal guidelines. He presented the investigative process and possible defenses to take if a firm does not comply with M/WBE and DBE requirements.
Henry Goldberg of Goldberg & Connolly Moderates Discussion At Key Issues Confronting The Highway Industry Forum From Ashe
Henry Goldberg, Managing Partner, Goldberg & Connolly, recently served as a moderator at “Key Issues Confronting the Highway Industry” presented by the American Society of Highway Engineers New York Metro chapter on March 16, 2011 at the McGraw-Hill Auditorium. The keynote speaker of the event was Lori Ardito, First Deputy Commissioner, NYCDOT.
A group of industry experts including public owners, major contractors and consultants participated in panels throughout the day. Panelists included: Jay Dier, President, The Judlau Companies, Jay Gewirtzman, PE, Vice President/Operations Manager, URS Corp., Bruce E. Ogurek, PE, Acting Director of Construction Region 11, New York State DOT, Paul J. Scagnelli, PE, Executive Vice President & Chief Officer, Schiavone Construction Co. LLC and James Starace, PE, Deputy Chief Engineer/Deputy Director, The Port Authority of NY & NJ.
Goldberg & Connolly sponsored the event and Mr. Goldberg served as a moderator on the Dispute Resolution Procedures panel. Additional topics discussed included: Damage for Delay, Release of Retainage to Subcontractors, Legitimate DBE Participation and Project Delivery Methods.
Goldberg & Connolly’s Construction Practice Group works closely with its clients to either prevent disputes or to develop creative solutions to them. The firm’s personnel is actively engaged in defending the interests of sureties in complex construction disputes, as well as in pursuing affirmative contract claims, often the most productive source for capturing additional funds.
Goldberg & Connolly Represents The Town of Babylon, NY In Legal Action Filed Against Fannie Mae and Freddie Mac in Federal Court for Killing Green Homes Program
Goldberg & Connolly is pleased to announce the recent filing of an action on behalf of the Town of Babylon, New York against the Federal Home Loan Mortgage Corporation (Freddie Mac), the Federal National Mortgage Association (Fannie Mae), the Federal Housing Finance Agency (FHFA), and others in the United States District Court, Eastern District of New York.
The Town of Babylon’s action seeks a judicial declaration that recent changes to the mortgage underwriting guidelines of these federal agencies seriously impacts the continued viability of Babylon’s innovative Green Homes Program (LIGH). The lawsuit seeks to vacate and set aside their violation of federal and state laws and the Tenth Amendment of the U.S. Constitution due to the alleged overreaching of the federal defendants into state and local government matters.
“We applaud the Town of Babylon for seeking federal court intervention to enjoin the federal defendants from blocking the Town’s efforts,” said Henry L. Goldberg, Babylon Town Attorney in the matter. “Through its innovative LIGH Program, Babylon is helping both its residents and the environment and taking a leadership role by providing a national model for fostering a cleaner environment.”
Babylon’s Energy Retrofit Financing LIGH Program
Since 2008, Babylon’s LIGH program has provided hundreds of modest loans to residents for home energy improvements including more efficient heating systems and insulation. The program has resulted in over 600 greener, more efficient homes, reduced carbon emissions by approximately four tons and reduced home operating costs. The program creates a significant number of green jobs in the community and reduces annual energy bills by $1,000 on average.
The highly successful program provides residents with repayment terms of up to 10 years. In most instances, the cost savings as a result of reduced energy use are in excess of the monthly repayment amount.
Underwriting Standards Restrict Mortgage Lending to LIGH Participants
In July 2010, FHFA instructed Fannie Mae and Freddie Mac to restrict mortgage lending opportunities to homeowners in municipalities that offer home energy retrofit programs, including LIGH or PACE. Now, many national banks also refuse mortgages to borrowers in these areas. Both banks and the federal mortgage agencies claim improvement assessments are allegedly detrimental to the banks by increasing their risk because LIGH or PACE has first repayment priority before a new or existing mortgage.
Babylon contends that their modest loans, averaging about nine thousand dollars, do not pose any real risk to the lender due to the reduction in the homeowner’s energy costs and the increase in the value of the improved home, which would actually be a benefit to the mortgage banks. If the lawsuit is not successful, the restriction of mortgages to LIGH or PACE municipalities may lead to an end for these successful energy saving programs.
M/WBE & DBE Good Faith Compliance Seminar
Henry L. Goldberg, Erik A. Ortmann and Christopher K. Smith presented to the Subcontractors Trade Association on M/WBE & DBE Good Faith Compliance on February 16, 2011. This informative seminar addressed the certification processes and contract directives to utilize M/WBE and DBE entities. Participants will also learn about the New York City and State guidelines and requirements for M/WBE and DBE organizations.
Construction Financial Management Association Annual Public Agencies Program
Henry Goldberg moderated The Construction Financial Management Association (CFMA) Public Agencies Program on February 9, 2011. The program on M/WBE and DBE Good Faith Compliance. included presentations by Warren Whitlock, Director of the Office of Civil Rights, NYS Department of Transportation and Alan Wasserman, Deputy Chief Contract Compliance Officer, NYC Department of Environmental Protection. The panelists discussed the local, state and Federal certification processes for M/WBE and DBE companies as well as goals and requirements.
New York’s Underground Seminar
Henry Goldberg acted as moderator in the New York’s Underground seminar hosted by McGraw-Hill Construction on October 19, 2010. Industry experts discussed the delayed projects and heavy job loss as a result of the financial downturn as well as the possible government stimulus and investment in infrastructure to come.
Goldberg & Connolly Wins Appeal Against NYC and Bovis Lend Lease to Restore Multi-Million Dollar Contract Claim
Goldberg & Connolly is pleased to announce the firm was able to restore the multi-million dollar claim of Navillus Tile Inc. (Navillus) against New York City Department of Design and Construction (DDC) and Bovis Lend Lease LMB, Inc. (Bovis).
DDC and Bovis had alleged that Navillus failed to follow the dispute resolution procedures and the claim notice and damage recordkeeping provisions of the prime contract between Bovis and DDC. The critical issue in this case was whether Bovis could bind its subcontractor, Navillus, to all the terms of the Prime Contract, including its dispute resolution procedures, and its notice requirements, by mere blanket incorporation, or cross-reference, to the Prime Contract in the Navillus subcontract with Bovis. The lower court originally said that it could and dismissed Navillus’ lawsuit in its entirety. On the appeal handled by Goldberg & Connolly, the appellate court in Brooklyn reversed, completely reinstating Navillus’ lawsuit.
Bovis, as the City’s CM, had subcontracted with Navillus. The contract between Bovis and Navillus (the “Trade Contract”) consisted of the Trade Contract, the General Conditions, the Special Conditions and the Prime Contract.
The DDC and Bovis both moved to dismiss Navillus’ lawsuit based on the fact that Navillus failed to follow the ADR procedures of the Prime Contract. The lower court held that because the Prime Contract’s ADR Procedures, and the New York City Procurement Policy Board (PPB) Rules, were expressly referenced in the Trade Contract, the same ADR Procedures and the PPB Rules should apply to Navillus.
Goldberg & Connolly handled the appeal on Navillus’ behalf arguing, among other things, that the ADR provisions and PPB Rules did not apply to Navillus, as they were not properly incorporated into the Trade Contract.
While parties may be strictly held to the terms of a contract they sign, it must be clear that any provision in an “extrinsic” document (i.e., another contract to which they are not a party) must be clearly and properly “incorporated” into their contract for a party to be strictly held to its terms. It’s a matter of basic fairness, but one that is often very problematic in construction controversies given the alleged “flow down” relationship between Prime Contracts and Subcontracts. This is a milestone decision that has the potential to re-establishing a sense of basic fairness in the construction contracting process.
Goldberg & Connolly obtains $4.2 million settlement from NYC Health & Hospitals Corporation (HHC) and the Dormitory Authority of the State of New York ( DASNY) for B.G. National Plumbing & Heating.
Goldberg & Connolly's (G&C) successful representation of BG National Plumbing & Heating Inc, on a delay claim against the NYC Health & Hospitals Corporation (HHC), has resulted in a $4.2 MM settlement.
As is often the case, G&C took over this case from another law firm which had previously handled it. In August 2007, we immediately took steps to suspend litigation and engage DASNY and HHC in extended, meaningful discussions to resolve the dispute.
BG National was hired by HHC in 2002 to handle the plumbing portion of the modernization and new construction of Jacobi Medical Center complex in Brooklyn. The total contract amount was $8.297MM and change orders amounted to $1.2MM, with an adjusted contract price to $10.2MM.
There were over 18 "unscheduled" categories of impacts ranging from design defects, out of sequence work, owner changes and elevation errors that resulted in a delay in project completion of over 2½ years from January 2004 to October 2006.
To its credit, BG National diligently persevered on this difficult project despite severe cost overruns and delays to insure the project was completed for the benefit of the public. We also applaud DASNY, as a responsible public owner for recognizing the enormous effort and hardship BG National assumed and confronted.
We are gratified to have been able to assist our client, without litigation and in a timely fashion, to recoup its considerable investment in this project and reestablish this undertaking as a profitable venture.
G&C Special Counsel Wins Reversal from NYS Court of Appeals
Congratulations to G&C's special counsel, Darrell W. Harp, known well to many of our clients and friends as the long time former NYSDOT Deputy Commissioner & General Counsel. Darrell recently had the privilege of arguing a case before New York State's highest court, the Court of Appeals in Albany. In the matter Hargett v. Town of Ticonderoga, et al., which involved an eminent domain/condemnation controversy, the Town's Superintendent of Highways was held to have exceeded his authority in seeking to condemn certain real property for highway purposes. It is obviously financially burdensome when a citizen is required to challenge a governmental action. In the present appeal (incidentally one of the very first authored by New York's new Chief Judge Jonathan Lippman), Darrell succeeded in obtaining previously denied reimbursement from the Town for all costs and expenses of the proceeding, including reasonable attorney's fees. Bravo, Darrell.
G&C Conducts Seminar on the New Private Sector Prompt Pay Act for the Subcontractors Trade & Wall-Ceiling & Carpentry Trade Associations
G&C held a "standing room only" program on January 13, 2010 at the Crowne Plaza Hotel at Laguardia Airport for STA members and an equally well attended program on April 27, 2010 at the New York Gun Club for the WC&C membership. New York's previously enacted Prompt Payment Act for construction work on private projects was the target of much criticism for its lack of any meaningful enforcement mechanisms. Unlike the previous Act, the new Prompt Payment Act actually has "teeth" that should create real methods for enforcing timely payments. For a complete review of the amended provisions please click here.
Goldberg & Connolly's Erik A. Ortmann to Moderate Elite CFMA Panel Discussion on January 24, 2012
Goldberg & Connolly is pleased to announce that Erik A. Ortmann, a Senior Associate at the firm, will be moderating an elite panel discussion hosted by the Long Island Chapter of the Construction Financial Management Association (CFMA) entitled, “Long Island’s Economic Outlook – The Experts’ Perspective.” The discussion will take place on Tuesday, January 24, 2012 at 9:00am at the Huntington Hilton at 598 Broadhollow Road, Melville, NY.
The panel discussion will be led by Andrea Lohneiss, Long Island Regional Director of the Empire State Development Corporation, Patrick O’Keefe, Director of Economic Research at JH Cohn, LLP and Marc Herbst, Executive Director of the Long Island Contractors Association.
Panelists will present their views on the economic outlook for 2012 and its implications for public and private construction and development; federal and state funding for projects; attracting and keeping businesses on Long Island; and key opportunities and innovative ideas that can permit Long Island to strengthen and grow its economy.
While faced with significant challenges amid the economic downturn, there are signs of innovation and revitalization which suggest that the Long Island Contracting Community is striving to meet these challenges and is poised for a better future.
Mr. Ortmann is a Senior Associate with Goldberg & Connolly and a member of the firm’s Construction Law and Commercial Litigation Groups. He is on the board of the LI Chapter of the Construction Financial Management Association and is actively involved in the law and legislation committee of the General Contractors Association. He has also served as General Counsel to the NYC/LI Chapter of the National Association of the Remodeling Industry.
As a frequent presenter at industry forums and events on legal matters critical to the public contracting industry, Mr. Ortmann speaks on such topics as M/WBE Good Faith Compliance, The New Prompt Pay Act and Delay Claims.
Mr. Ortmann received his law degree from Hofstra University School of Law in 1994 and is admitted to practice in both state and federal courts in New York State.
For more information regarding the event or to register please contact Debbie at (201) 828-5776 or visit http://chapters.cfma.org/LI/events.htm.
Goldberg & Connolly's Erik A. Ortmann Receives Leed Green Associate Certification
Goldberg & Connolly is pleased to announce that Erik A. Ortmann, Esq.,a Senior Associate at the firm, passed the LEED Green Associate Exam on December 1, 2011, and is now certified as a LEED Green Associate.
The LEED Green Associate credential is attainable for professionals who are looking to demonstrate green building expertise in non-technical fields of practice. The Green Building Certification Institute (GBCI) administers the LEED Green Associate credential examination, which denotes basic knowledge of green design, construction and operations.
Mr. Ortmann is a Senior Associate with Goldberg & Connolly and a member of the firm’s Construction Law and Commercial Litigation Groups. He is on the board of the LI Chapter of the Construction Financial Management Association and is actively involved in the law and legislation committee of the General Contractors Association. He has also served as General Counsel to the NYC/LI Chapter of the National Association of the Remodeling Industry.
As a frequent presenter at industry forums and events on legal matters critical to the public contracting industry, Mr. Ortmann speaks on such topics as M/WBE Good Faith Compliance, The New Prompt Pay Act and Delay Claims.
Mr. Ortmann received his law degree from Hofstra University School of Law in 1994 and is admitted to practice in both state and federal courts in New York State.
Jeffrey I. Scott Joins Goldberg & Connolly's Construction Practice and Construction Litigation Groups
Goldberg & Connolly is pleased to announce that Jeffrey I. Scott has joined the firm as an associate in the Construction Practice and Construction Litigation Groups.
Mr. Scott graduated magna cum laude from Binghamton University in 2007. He received his Juris Doctor from Benjamin N. Cardozo School of Law in 2010 and was the recipient of the prestigious Jacob Burns Medal for scholastic achievement.
Mr. Scott is admitted to practice in New York and New Jersey State Courts, as we as the District of New Jersey, and Southern and Eastern Districts of New York Federal Courts.
Erik A. Ortmann to Speak at DASNY MWBE Forum on October 13, 2011
Goldberg & Connolly Attorney Erik A. Ortmann will be a panelist at the annual DASNY MWBE Forum on Thursday and Friday, October 13 and 14, 2011 in Albany, New York at the Empire State Plaza Convention Center and The Egg.
DASNY's MWBE Forum is the largest statewide business opportunities event for MWBEs. The program attracts over 1000 MWBE firms drawn from construction, architecture and engineering, financial and professional services and commodity suppliers from across New York State. Over 20 other State and City public agencies and authorities also participate and share information about their programs and new business opportunities.
Goldberg & Connolly to Present at CFMA Educational Symposium October 25, 2011
Goldberg & Connolly will present a seminar entitled “Construction Claims First-Aid: Don’t Bleed to Death” at the CFMA Construction Educational Symposium on October 26-28, 2011. The all day educational symposium will be a joint event with the New York City and New Jersey chapters.
Goldberg & Connolly Speaks on Complying with the New DBE and M/WBE Program Requirements and "Best Practices" at AGC Event on Tuesday, May, 24, 2011
Goldberg & Connolly Attorneys Henry L. Goldberg, Erik A. Ortmann and Christopher K. Smith spoke on “Best Practices” for Complying With The New DBE and M/WBE Program Requirements at the Associated General Contractors of New York State (AGC) seminar on Tuesday, May 24, 2011.
Mr. Ortmann discussed certification and requirements, goals, good faith compliance and coordination and communication with agencies and authorities. He also discussed coordination and communication with owners regarding compliance and contract directives to utilize M/ WBE and DBE companies. Mr. Ortmann clarified the distinctions between NYC, NYS and federal guidelines. He presented the investigative process and possible defenses to take if a firm does not comply with M/WBE and DBE requirements.
Henry Goldberg of Goldberg & Connolly Moderates Discussion At Key Issues Confronting The Highway Industry Forum From Ashe
Henry Goldberg, Managing Partner, Goldberg & Connolly, recently served as a moderator at “Key Issues Confronting the Highway Industry” presented by the American Society of Highway Engineers New York Metro chapter on March 16, 2011 at the McGraw-Hill Auditorium. The keynote speaker of the event was Lori Ardito, First Deputy Commissioner, NYCDOT.
A group of industry experts including public owners, major contractors and consultants participated in panels throughout the day. Panelists included: Jay Dier, President, The Judlau Companies, Jay Gewirtzman, PE, Vice President/Operations Manager, URS Corp., Bruce E. Ogurek, PE, Acting Director of Construction Region 11, New York State DOT, Paul J. Scagnelli, PE, Executive Vice President & Chief Officer, Schiavone Construction Co. LLC and James Starace, PE, Deputy Chief Engineer/Deputy Director, The Port Authority of NY & NJ.
Goldberg & Connolly sponsored the event and Mr. Goldberg served as a moderator on the Dispute Resolution Procedures panel. Additional topics discussed included: Damage for Delay, Release of Retainage to Subcontractors, Legitimate DBE Participation and Project Delivery Methods.
Goldberg & Connolly’s Construction Practice Group works closely with its clients to either prevent disputes or to develop creative solutions to them. The firm’s personnel is actively engaged in defending the interests of sureties in complex construction disputes, as well as in pursuing affirmative contract claims, often the most productive source for capturing additional funds.
Goldberg & Connolly Represents The Town of Babylon, NY In Legal Action Filed Against Fannie Mae and Freddie Mac in Federal Court for Killing Green Homes Program
Goldberg & Connolly is pleased to announce the recent filing of an action on behalf of the Town of Babylon, New York against the Federal Home Loan Mortgage Corporation (Freddie Mac), the Federal National Mortgage Association (Fannie Mae), the Federal Housing Finance Agency (FHFA), and others in the United States District Court, Eastern District of New York.
The Town of Babylon’s action seeks a judicial declaration that recent changes to the mortgage underwriting guidelines of these federal agencies seriously impacts the continued viability of Babylon’s innovative Green Homes Program (LIGH). The lawsuit seeks to vacate and set aside their violation of federal and state laws and the Tenth Amendment of the U.S. Constitution due to the alleged overreaching of the federal defendants into state and local government matters.
“We applaud the Town of Babylon for seeking federal court intervention to enjoin the federal defendants from blocking the Town’s efforts,” said Henry L. Goldberg, Babylon Town Attorney in the matter. “Through its innovative LIGH Program, Babylon is helping both its residents and the environment and taking a leadership role by providing a national model for fostering a cleaner environment.”
Babylon’s Energy Retrofit Financing LIGH Program
Since 2008, Babylon’s LIGH program has provided hundreds of modest loans to residents for home energy improvements including more efficient heating systems and insulation. The program has resulted in over 600 greener, more efficient homes, reduced carbon emissions by approximately four tons and reduced home operating costs. The program creates a significant number of green jobs in the community and reduces annual energy bills by $1,000 on average.
The highly successful program provides residents with repayment terms of up to 10 years. In most instances, the cost savings as a result of reduced energy use are in excess of the monthly repayment amount.
Underwriting Standards Restrict Mortgage Lending to LIGH Participants
In July 2010, FHFA instructed Fannie Mae and Freddie Mac to restrict mortgage lending opportunities to homeowners in municipalities that offer home energy retrofit programs, including LIGH or PACE. Now, many national banks also refuse mortgages to borrowers in these areas. Both banks and the federal mortgage agencies claim improvement assessments are allegedly detrimental to the banks by increasing their risk because LIGH or PACE has first repayment priority before a new or existing mortgage.
Babylon contends that their modest loans, averaging about nine thousand dollars, do not pose any real risk to the lender due to the reduction in the homeowner’s energy costs and the increase in the value of the improved home, which would actually be a benefit to the mortgage banks. If the lawsuit is not successful, the restriction of mortgages to LIGH or PACE municipalities may lead to an end for these successful energy saving programs.
M/WBE & DBE Good Faith Compliance Seminar
Henry L. Goldberg, Erik A. Ortmann and Christopher K. Smith presented to the Subcontractors Trade Association on M/WBE & DBE Good Faith Compliance on February 16, 2011. This informative seminar addressed the certification processes and contract directives to utilize M/WBE and DBE entities. Participants will also learn about the New York City and State guidelines and requirements for M/WBE and DBE organizations. Construction Financial Management Association Annual Public Agencies ProgramHenry Goldberg moderated The Construction Financial Management Association (CFMA) Public Agencies Program on February 9, 2011. The program on M/WBE and DBE Good Faith Compliance. included presentations by Warren Whitlock, Director of the Office of Civil Rights, NYS Department of Transportation and Alan Wasserman, Deputy Chief Contract Compliance Officer, NYC Department of Environmental Protection. The panelists discussed the local, state and Federal certification processes for M/WBE and DBE companies as well as goals and requirements.
New York’s Underground Seminar
Henry Goldberg acted as moderator in the New York’s Underground seminar hosted by McGraw-Hill Construction on October 19, 2010. Industry experts discussed the delayed projects and heavy job loss as a result of the financial downturn as well as the possible government stimulus and investment in infrastructure to come.
Goldberg & Connolly Wins Appeal Against NYC and Bovis Lend Lease to Restore Multi-Million Dollar Contract Claim
Goldberg & Connolly is pleased to announce the firm was able to restore the multi-million dollar claim of Navillus Tile Inc. (Navillus) against New York City Department of Design and Construction (DDC) and Bovis Lend Lease LMB, Inc. (Bovis).
DDC and Bovis had alleged that Navillus failed to follow the dispute resolution procedures and the claim notice and damage recordkeeping provisions of the prime contract between Bovis and DDC. The critical issue in this case was whether Bovis could bind its subcontractor, Navillus, to all the terms of the Prime Contract, including its dispute resolution procedures, and its notice requirements, by mere blanket incorporation, or cross-reference, to the Prime Contract in the Navillus subcontract with Bovis. The lower court originally said that it could and dismissed Navillus’ lawsuit in its entirety. On the appeal handled by Goldberg & Connolly, the appellate court in Brooklyn reversed, completely reinstating Navillus’ lawsuit.
Bovis, as the City’s CM, had subcontracted with Navillus. The contract between Bovis and Navillus (the “Trade Contract”) consisted of the Trade Contract, the General Conditions, the Special Conditions and the Prime Contract.
The DDC and Bovis both moved to dismiss Navillus’ lawsuit based on the fact that Navillus failed to follow the ADR procedures of the Prime Contract. The lower court held that because the Prime Contract’s ADR Procedures, and the New York City Procurement Policy Board (PPB) Rules, were expressly referenced in the Trade Contract, the same ADR Procedures and the PPB Rules should apply to Navillus.
Goldberg & Connolly handled the appeal on Navillus’ behalf arguing, among other things, that the ADR provisions and PPB Rules did not apply to Navillus, as they were not properly incorporated into the Trade Contract.
While parties may be strictly held to the terms of a contract they sign, it must be clear that any provision in an “extrinsic” document (i.e., another contract to which they are not a party) must be clearly and properly “incorporated” into their contract for a party to be strictly held to its terms. It’s a matter of basic fairness, but one that is often very problematic in construction controversies given the alleged “flow down” relationship between Prime Contracts and Subcontracts. This is a milestone decision that has the potential to re-establishing a sense of basic fairness in the construction contracting process.
Goldberg & Connolly obtains $4.2 million settlement from NYC Health & Hospitals Corporation (HHC) and the Dormitory Authority of the State of New York ( DASNY) for B.G. National Plumbing & Heating.
Goldberg & Connolly's (G&C) successful representation of BG National Plumbing & Heating Inc, on a delay claim against the NYC Health & Hospitals Corporation (HHC), has resulted in a $4.2 MM settlement.
As is often the case, G&C took over this case from another law firm which had previously handled it. In August 2007, we immediately took steps to suspend litigation and engage DASNY and HHC in extended, meaningful discussions to resolve the dispute.
BG National was hired by HHC in 2002 to handle the plumbing portion of the modernization and new construction of Jacobi Medical Center complex in Brooklyn. The total contract amount was $8.297MM and change orders amounted to $1.2MM, with an adjusted contract price to $10.2MM.
There were over 18 "unscheduled" categories of impacts ranging from design defects, out of sequence work, owner changes and elevation errors that resulted in a delay in project completion of over 2½ years from January 2004 to October 2006.
To its credit, BG National diligently persevered on this difficult project despite severe cost overruns and delays to insure the project was completed for the benefit of the public. We also applaud DASNY, as a responsible public owner for recognizing the enormous effort and hardship BG National assumed and confronted.
We are gratified to have been able to assist our client, without litigation and in a timely fashion, to recoup its considerable investment in this project and reestablish this undertaking as a profitable venture.
G&C Special Counsel Wins Reversal from NYS Court of Appeals
Congratulations to G&C's special counsel, Darrell W. Harp, known well to many of our clients and friends as the long time former NYSDOT Deputy Commissioner & General Counsel. Darrell recently had the privilege of arguing a case before New York State's highest court, the Court of Appeals in Albany. In the matter Hargett v. Town of Ticonderoga, et al., which involved an eminent domain/condemnation controversy, the Town's Superintendent of Highways was held to have exceeded his authority in seeking to condemn certain real property for highway purposes. It is obviously financially burdensome when a citizen is required to challenge a governmental action. In the present appeal (incidentally one of the very first authored by New York's new Chief Judge Jonathan Lippman), Darrell succeeded in obtaining previously denied reimbursement from the Town for all costs and expenses of the proceeding, including reasonable attorney's fees. Bravo, Darrell.
G&C Conducts Seminar on the New Private Sector Prompt Pay Act for the Subcontractors Trade & Wall-Ceiling & Carpentry Trade Associations
G&C held a "standing room only" program on January 13, 2010 at the Crowne Plaza Hotel at Laguardia Airport for STA members and an equally well attended program on April 27, 2010 at the New York Gun Club for the WC&C membership. New York's previously enacted Prompt Payment Act for construction work on private projects was the target of much criticism for its lack of any meaningful enforcement mechanisms. Unlike the previous Act, the new Prompt Payment Act actually has "teeth" that should create real methods for enforcing timely payments. For a complete review of the amended provisions please click here.