Vol 21, No. 1

July 2002

(518) 869-9800

 

 

Inside this Edition:  Elacqua Elected NESCA’s 30th President, Members Say DASNY Slow In Processing Change Orders,  President’s Message, A New Twist On The Scaffold Act, Legislative Update, Welcome New Members  

 

 

ELACQUA ELECTED NESCA’S 30TH PRESIDENT  Go Top

 

                James M. Elacqua, associated with Clemente Latham Concrete, was elected president of NESCA for 2002-03 at the association’s June 13th membership meeting held at the Century House.  Jim became NESCA’s 30th president, succeeding Robert H. Kind of Teal, Becker & Chiaramonte, CPAs, P.C.  He has served as NESCA’s vice president, treasurer and secretary during the last three years respectively, following several years of service representing NESCA’s specialty contractors on the Board of Directors.

                Clemente Latham Concrete, a Division of Callanan Industries, Inc., is the largest producer of ready-mix concrete in the Capital District with ten plants located between the Adirondacks and the Catskills, and west to Gloversville.  Clemente Latham Concrete services all types and sizes of construction projects, both commercial and residential.  The company also has two portable plants ready for on-site production, and a fleet of over 70 truckmixers.  Jim began with Clemente Latham Concrete in 2002 after spending 12 years with AFSCO Fence Supply Co., Inc.  Prior to his time at AFSCO, Jim worked for a general contracting company in Houston, Texas.  He received his AA Degree in Civil Technology from Hudson Valley Community College.  Jim has been active in NESCA since 1990.

                Also elected as 2002-03 officers at the June 13th meeting were:  Jeffrey Senft of S & O Construction Services, Inc. as vice president, Kevin Garrity of Rose & Kiernan, Inc. as treasurer, and Hal Hatfield of Maximum Security Products Corp. as secretary.

 

 

MEMBERS SAY DASNY SLOW IN PROCESSING CHANGE ORDERS  Go Top

 

                A recent survey conducted by NESCA has revealed general frustration among NESCA members with the length of time the State Dormitory Authority takes to process and make payment on change orders.  The survey revealed a similar frustration among members regarding project closeout and the release of retainage by DASNY.

                The survey was mailed to all members on May 13th, and asked those who were or had recently been involved on DASNY projects to relate their experiences regarding (1) the processing and payment of change orders, and (2) project closeout/release of retainage.

                Twenty-five members working on fifteen different DASNY projects responded to the survey.  The compiled results reveal the following:

Length of time to process and pay change orders.

Average – 12.3 months

Median – 9 months

Range – 2 months to 46 months

Length of time to release retainage after project completion.

Average – 13.2 months

Median – 18 months

Range – 4 months to 36 months

                NESCA has spoken to DASNY about the survey and will soon schedule a meeting with that agency to address what appears to be a widespread problem with the processing of change orders and project closeout/release of retainage.

 

 

PRESIDENT’S MESSAGE  Go Top

 

                As we move into the summer months, I look forward with great anticipation to my year as NESCA’s new president, and very much appreciate the opportunity to serve in this capacity.

                When I look back at NESCA’s 31 years as an organization, I can’t help but feel an intense pride over how much subcontractors and suppliers located in Northeastern New York have been able to accomplish.

                Consider the fact that during this time, NESCA has been responsible for the passage of over 30 new laws that benefit not only our members, but all subcontractors and suppliers doing business in New York State.  There isn’t another  subcontractor’s association in the entire country that can lay claim to that level of legislative success.  And just think about the quality – and quantity -- of education NESCA has provided for our members over the years.  This past year alone, members were offered more than 35 management seminars, OSHA safety courses and supervisory training programs.  It’s no wonder we have had a number of large national general contractors tell us that the ONLY place in the country they have had any trouble getting subcontractors to sign their normal contract agreements is in Northeastern New York State.  Why?  Because NESCA members are educated!

                Despite existing in a medium-size market area, NESCA continues to be the largest regional subcontractors association in the nation.  This is important, because our size gives us clout: clout in the Legislature and with the various state contracting agencies; clout with general contractors, architects and engineers; clout with the private sector.

                Looking forward, however, there is much more we can accomplish if we work together.  There will always be new regulatory hurdles thrown in our path, new issues to tackle.  Think about payment issues for instance.  Despite the many positive changes NESCA has made in our lien law and in our public payment laws, getting paid for work performed will probably always be our biggest problem.  The evidence is before us.  During the past year, NESCA filed a record number of liens on behalf of our members.  378 liens for 124 different companies.  Our recent DASNY survey also reveals that payment on change orders and release of retainage continues to be problematic.  Clearly, we need to persist in this area.

                During the coming 12 months, NESCA will continue to work on two major issues: (1) doing something about sections 240/241 of the Labor Law and the devastating impact this law has on our insurance rates; and (2) passing legislation to require that owners place retainage in an interest-bearing escrow account so that we know our money is protected.

                Please work with us as we attempt to accomplish these two goals.  Renew your membership and remit your dues promptly.  Write and/or call your state legislators when we fax you action alerts.  I have no doubt that if we all stick together and NESCA stays strong as an organization, eventually we WILL see these goals realized.

 

James M. Elacqua

President

 

A NEW TWIST ON THE SCAFFOLD ACT  Go Top

 

                The New York State Court of Appeals on March 26, 2002 handed down its decision in Bauer v. Female Academy of the Sacred Heart, 97 N.Y.2d 445, in which it distinguished between the application of §202 and §240(1) of the New York State Labor Law.

                The facts of the case involved a window cleaner who was severely injured when he fell from a third story window.  He subsequently sued the owner of the building under §202 and §240(1) of the Labor Law and the owner then impleaded the plaintiff’s employer.  Section 202 provides for the protection of the public and of persons engaged at window cleaning and the cleaning of exterior surfaces of buildings.  Section 240(1), the Scaffolding Act, imposes strict liability on contractors and owners who fail to provide for scaffolding and other devices to ensure proper protection for workers such as window cleaners.  While §240(1) imposes strict liability, §202 is a comparative liability statute.  Although both sections cover window cleaners, §202 specifically applies only to window cleaners and cleaners of the exterior of building surfaces.  The appellate division held that §202 should control and would supercede §240(1), resulting in the application of a comparative negligence standard to determine liability.  The Court of Appeals in overturning the appellate division ruling found that §202 is a comparative negligence statute but it does not supercede §240(1).  Consequently, the strict liability standard of §240(1) should apply even when the plaintiff has brought claims under §202 as well as §240(1).

                It should be further noted that the strict liability provisions of §240(1) will not bar contribution among joined tortfeasers.  Should the owner be held strictly liable, he could seek contribution from the plaintiff’s employer and, where a contractor might be involved, from the contractor itself.  The amount of contribution would, of course, be based upon a determination of the comparative negligence of the parties.

                This case illustrates the continuing complexity of issues which have been spawned by the interactions among the strict liability Scaffolding Act and the comparative negligence standards of other sections of the Labor Law as well as the contribution and indemnification issues among joint tortfeasers.

 

Terence J. Burke

NESCA Legal Counsel

LEGISLATIVE UPDATE  Go Top

 

Retainage in Escrow Account – With the 2002 legislative session winding down, the Empire State Subcontractor Association bill that would require retainage held on private construction projects over $100,000 be placed in an interest-bearing escrow account has shown some movement in the Assembly, but has run into a roadblock in the Senate Judiciary Committee.  Entering the final week of the regularly scheduled legislative session, the bill (S.3708-A/A.9711) had already been reported out of the Assembly Judiciary Committee on June 4th, thanks to the many letters sent by ESSA members to Judiciary Committee Chairwoman Helene Weinstein.  Unfortunately, despite reporting this same bill out of the Senate Judiciary Committee in 2001, Committee Chairman James Lack has refused to move the bill this year.  As of the writing of this Newsletter, ESSA had appealed directly to Senate Majority Leader Joseph Bruno to intervene in this matter.

 

Workers’ Compensation Benefits – Momentum is building in the Legislature for a workers’ compensation benefit increase this year.  Labor unions have been pressing the Legislature to increase New York’s maximum comp benefits from the current $400 a week to a figure closer to the state’s average weekly wage.  Some have reported labor’s demands to be as high has $890 per week, but in a June 13th press release, the AFL-CIO urged a 50 percent increase in the current maximum benefit, which would place the top benefit at $600.  Organized labor is also pushing to change the law to require an annual increase in benefits (indexing).  The business community is demanding that cost cutting reforms be a component of any agreement to increase benefits.  The top priority for business is to limit the number of weeks a worker can collect benefits for partial-impairment to a maximum of 500.  Another reform sought by business would require the use of objective medical guidelines to determine the degree of disability in these cases.

 

Minimum Wage – After passing an increase in the state’s minimum wage back in April, the State Assembly recently amended its minimum wage bill to make it identical to the Senate version – and promptly passed it again on June 3rd.  Both the Senate and Assembly bills would now raise the minimum wage to $6.75 per hour on January 1, 2003, and automatically raise it each year thereafter by the annual percent change in the state’s average weekly wage.  The bill was reported out of the Senate Labor Committee in May.

       

Help Wanted

 

Closet Crafters/Albany Shower Door is looking for a sales person.  Knowledge of construction trades would be helpful.  This individual will work with residential and commercial accounts within a 100-mile radius of Albany.  Please call Diane @ 518-459-0037 ext. 202.

 

 

WELCOME NEW MEMBERS  Go Top

Bodnar Mechanical                                     Mignery Masonry, LLC

8995 Main Street                                                  588 Pleasant Hill Road

Lisle, NY 13797                                                     Port Crane, NY 13833

(607) 692-7039; Fax (607) 692-7667     (607) 648-6711; Fax (607) 648-6288

Contacts:  Lawrence & Dolores Bodnar           Contacts: Warren Mignery, Bob Choberka

 

CM Mechanical of Orange County, Inc.         Northeastern Plate Glass Corp.

16 North Church Street                                       3 Alice Street, PO Box 2397

Goshen, NY 10924                                                Binghamton, NY 13902

(845) 294-3420; Fax (845) 294-5380     (607) 772-1810; Fax (607) 772-1855

Contact: Corey Mayo                                         Contact: Jeanne Michaud

 

Christina Steel, Inc.                                           Reliable Glass & Door Corp.

1667 Central Avenue                                           357 Old Forge Hill Road, Suite 500

Albany, NY 12205                                                New Windsor, NY 12553

(518) 218-0141; Fax (518) 218-0406     (845) 565-4700; Fax (845) 565-3470

Contact: Christina Audi                                      Contact: James Distefano, Jr.

 

Cutting Edge Group                                            Westley J. Staroba, Inc. dba S&S Elec.

14 Walkup Cutoff Road                                      2635 Broadway

Lake George, NY 12845                                       Schenectady, NY 12306

(518) 798-4151; Fax (518) 798-4152     (518) 393-6602; Fax (518) 393-1174

Contacts: Tom Davey, Antonio Abrantes       Contacts:Westley Staroba, Laurie Milewski

 

JJ Flynn & Sons, LLC                                       Schumacher Systems, Inc.

205 Nutgrove Lane                                              1043 County Road 164

Albany, NY 12202                                                Callicoon, NY 12723

(518) 449-2086; Fax (518) 449-2086     (845) 887-5381; Fax (845) 887-4182

Contact: John Flynn                                            Contact: Craig Schumacher

 

John C. Lowery, Inc.                                           Wesko SCS, Inc.

969 East Shore Drive                                           PO Box 439, 964 Conklin Road

Ithaca, NY 14850                                                  Conklin, NY 13748

(607) 272-9407; Fax (607) 277-4606     (607) 723-6714; Fax (607) 723-6743

Contact: John C. Lowery                                    Contact: Laura Hollister

 

R.E. Lee Builders Hardware                            

1085 Catlyn Street                                               

Schenectady, NY 12303                                     

(518) 381-1786; Fax (518) 381-8957    

Contact: Robert Lee