25th Annual NESCA Trade Show To Be Held On October 13^th (Go To)

Business owners, managers and supervisors involved in the commercial construction industry who wish to learn about the latest in construction products and services will have the opportunity to engage in some one-stop shopping when NESCA hosts its 25th Annual Trade Show on Thursday, October 13, 2005 at the Century House in Latham. The Trade Show, which will be held from 4:00 - 8:30 p.m., will expose subcontractors, general contractors, design professionals, manufacturers, and public owners to a wide variety of products and services in virtually every trade category. Rigging equipment, power tools, lifts and ladders, acoustical products, windows and doors, insurance and bonding services, welding equipment, building materials, fasteners and vapor control systems are among the many products and services which will be on display at the Trade Show.

All available exhibit space has been sold out for the Trade Show, and total attendance is expected to top 500. Those NESCA members who have attended the Trade Show in the past know that it is much more than just a trade show, it is an industry event calculated to bring the various segments of the commercial construction industry together for an evening of business networking. While taking in the exhibits, attendees will be treated to a variety of hors d’oeuvres, carving stations and other great food at the International Food Bazaar. Door prizes will be given away by exhibitors, and a “Super 50/50” drawing will be held, with a guaranteed payout of at least $1,000 to the winner!

NESCA’s condensed 4 1/2 hour format, unlimited food and bar, exciting prizes, networking with construction industry professionals and the chance to see the most complete line-up of commercial construction products and services available in Northeastern New York is sure to make this event one that NESCA members will not want to miss. The admission fee for the Trade Show is $25 per person for advance registrations and $30 at the door. Once again this year, additional parking with shuttle service will be available at Guptill’s Roller Skating Arena, just north of the Century House. To register to attend the trade show, contact the NESCA office at (518) 869-9800.

Governor Vetoes OSHA 10-Hour Bill (Go Top)

Legislation that would have required all construction workers on public works projects to complete OSHA’s 10-hour safety course has been vetoed by Governor Pataki. The bill, which was passed by the Senate on June 16^th and by the Assembly four days later, specifically required that all public work contract specifications to which the state or a local government is a party contain a provision requiring workers employed by contractors and subcontractors to be certified as having completed OSHA’s 10-hour safety course.

The Governor vetoed this bill on August 23^rd, citing opposition from the New York State Conference of Mayors, the Division of the Budget and the Department of Labor. The Conference of Mayors objected to the fact the bill only applied to public works projects. The Budget Division contended that since the Labor Law already mandates safety training, the 10-hour requirement would be redundant, impractical and costly to both employers and the State. The Department of Labor had several objections, noting that the bill was not clear as to who would bear the cost of training and who would be responsible for monitoring compliance.

25TH ANNUAL NESCA TRADE SHOW

CENTURY HOUSE, LATHAM

OCTOBER 13, 2005 - $25 PER PERSON

Exhibits Open

4:00 - 8:30 p.m.

Food Bazaar & Hors D’oeuvres

4:30 - 8:00 p.m.

Open Bar

4:00 - 8:00 p.m.

Door Prizes & Super 50/50 Drawing

8:00 p.m.

Silent Auction

4:00 – 7:45 p.m.

PRESIDENT’S MESSAGE (Go Top)

Now that summer is over, NESCA is back in high gear offering a full compliment of membership meetings, educational seminars and other events, activities and services to benefit our members. I’m very pleased to report that our new year has really gotten off to a great start. We sold out our annual Day at the Races in July. We sold out our annual Golf Outing in September. We’ve already sold out all exhibit space for the upcoming annual Trade Show. We had a very interesting and well-attended membership meeting in September, featuring a presentation on “Identity Theft and Fraud” by Investigator Michael Cerone of the Colonie Police Department. We’ve begun this year’s educational program series, having already offered a seminar on “Electrical Hazards”, and courses on “Basic Blueprint Reading” and “Leadership and Motivation”. With our partners the General Building Contractors of NYS and Eastern Contractors Association, we’ve opened the new Albany Safety Training Center on Railroad Avenue. And, we formed an alliance with McGraw-Hill to offer NESCA members significant discounts off the regular price of the McGraw-Hill Construction Network.

By now you should know that NESCA’s 25th Annual Trade Show is coming up soon, and will be held on October 13, 2005. The Trade Show will be held at the Century House in Latham from 4:00-8:30 pm. More than 45 members will have exhibits at the Show, displaying a wide variety of commercial construction products and services. NESCA’s Trade Show is a one-of-a-kind annual event for our region’s commercial construction industry, and we expect more than 500 area general contractors, subcontractors, suppliers, architects, engineers and building owner representatives will attend. All members were recently mailed information and registration forms to attend the Trade Show, and I can’t encourage you enough to do just that. In addition to being a great time, the Trade Show provides our members with an opportunity to network with hundreds of other people involved in commercial construction. If you’ve never attended a NESCA Trade Show before, don’t miss this one!

Harold M. Hatfield, President

Dues Are Due

More than 80% of NESCA’s members have already paid their 2005-2006 membership dues. We thank the early payers and ask those who have not yet made your dues payment to do so as soon as possible so that NESCA may continue its work and advocacy on your behalf. Members who fail to pay their 2005-2006 dues by October 1^st are subject to suspension of all rights and privileges of membership by the Board of Directors.

Appellate Court Upholds

Liquidating Agreement (Go Top)

The Supreme Court of New York, Appellate Division, First Department on August 4, 2005 decided North Moore Street Developers, LLC v. Meltzer/Mandl Architects, P.C. In this case, the owner pursuant to a liquidating agreement with the general contractor, who had no privity of contract with the architect, brought claims for itself and the general contractor against the architect. The lower court dismissed the owner’s claims holding that the liquidating agreement was unenforceable because the plaintiff owner had asserted its own claims against the defendant architect and not just claims on behalf of the general contractor. The Appellate Court reversed the lower court holding in an opinion which addressed current New York law concerning liquidating agreements.

The Appellate Court citing Morse/Diesel v. Trinity Indus., 875 F. Supp. 165 (SD NY 1994) explained, in applying New York law, liquidating agreements “are commonly employed in the New York Construction industry as a means to apportion liability among owners, general contractors, and subcontractors, among whom such efforts are otherwise hindered by a lack of contractual privity. Without question, they are sanctioned by the law of New York and accepted as a basis for recovery.” The Appellate Court further stated that liquidating agreements have as their basic elements: (1) the imposition of liability upon a party for a third party’s increased costs, thereby providing the first party with a basis for legal action against the party at fault, (2) a liquidation of liability in the amount of the first party’s recovery against the party at fault, and (3) a provision for the pass-through of that recovery to the third party.

The Appellate Court in reversing the lower court held that the liquidating agreement at issue satisfied all three of these elements and that there was no requirement that the owner (the party in privity with the architect) may assert only the claims of the general contractor (the injured non-privity entity) under the liquidating agreement but may also assert his (the owner’s) claims as well.

The Appellate Court further held that there was no requirement for “actual contractual liability” to exist between parties to a liquidating agreement. Where the parties are a contractor and a subcontractor there is no requirement that the contractor be responsible for the subcontractor’s damages as a pre-requisite to the enforceability of a liquidating agreement.

Terence J. Burke, NESCA Legal Counsel

Governor Vetoes Two Labor Bills (Go Top)

Two bills being pursued by the building trades (see July 2005 Newsletter) were vetoed by Governor Pataki on August 30, 2005.

List of Independent Contractors – The stated purpose of this legislation was to protect employees on public projects from being misclassified as independent contractors, which would preclude them from receiving unemployment insurance and workers’ compensation benefits. The bill would have required contractors and subcontractors on public projects to submit a list to the Commissioner of Labor of all “independent contractors” used on the project. The list would have to be submitted within 30 days after completion of the project. Information required on the list would have included the name, social security number, job title and address of each independent contractor named. This legislation also required contractors and subcontractors to submit a fee of $10 per independent contractor named on the list. Such fee would have been deposited in the prevailing wage enforcement fund for the purpose of investigating and prosecuting violations of law related to the misclassification of independent contractors. The Governor’s veto was based on the fact that since DOL already conducts a factual inquiry when a person submits a claim for UI benefits, the legislation was unnecessary.

Access to Certified Payroll Records - This legislation would have required public agencies and local governments to make available for public inspection and copying a contractor’s or subcontractor’s certified payroll records for all employees classified as apprentices. The bill was similar to several other bills vetoed by the Governor in recent years based on personal privacy concerns. In his veto message the Governor restated his concerns about personal privacy. He stated the bill contained serious defects because while it expressly prohibited disclosure of social security numbers, it required the disclosure of names, addresses and telephone numbers of apprentices. The absence of language expressly prohibiting the disclosure of this personal information would result in the disclosure of private information that would constitute an unwarranted invasion of personal privacy.

Despite Governor Pataki’s veto of these two bills, another half dozen prevailing wage-related measures await action by the Governor, including a bill that would apply the prevailing wage law to certain off-site custom fabrication work.

Question of the Month (Go Top)

Q. What section of the lien law prohibits the blanket waiver of my lien rights as a condition of signing a contract?

A. Section 34 of the New York State Lien Law states that any contract, agreement or understanding whereby the right to file or enforce a mechanic’s lien is waived shall be void as against public policy and wholly unenforceable. This section of the Lien Law was drafted by NESCA’s state affiliate, the Empire State Subcontractors Association, back in 1975 and signed into law that same year.

Remember, however, that while the Lien Law prohibits the contractual waiver of your lien rights, it does allow a written waiver of the right to file a mechanic’s lien executed simultaneously with or after payment has been made to the subcontractor or supplier.

CALENDAR OF EVENTS (Go Top)

October 6, 2005

Board of Directors Meeting

Century House, Latham, 6 pm

October 6, 2005

NESCA/GBC/ECA 5-Wk. Course

STP Unit #1

Building Industry Center, 6 pm

October 13, 2005

25^th Annual NESCA Trade Show

Century House, Latham, 4 pm

October 18, 2005

NESCA/GBC/ECA Seminar

H.R. Issues

Building Industry Center, 6 pm

NESCA 21^st Annual Golf Outing

September 12, 2005, Shaker Ridge Country Club

Thank You to Our Many Sponsors:

Hole-In-One for a New Auto Hole-In-One for $10,000 Cash

Cool Insuring Agency, Inc. Rose & Kiernan, Inc.

Lunch Course Beverages

General Drywall Corp Stone Bridge Iron & Steel, Inc.

Cocktail Reception Dinner

Fast Trek Steel, Inc. Constructive Copy

VBI, LLC

Longest Drive Closest to the Pin

McGraw-Hill Construction The Woodward Company

Tee Sponsors Green Sponsors

AWESCO Albany Windustrial Co., Inc.

The Breakell Law Firm All-Lifts, Inc.

Brownell Steel, Inc. Bollam Sheedy Torani & Co., LLP

Campito Plumbing & Heating, Inc. Capitaland Truck Center

Century House Corporate Benefit Planning

Cool Insuring Agency, Inc. CNA Surety

Couch Dale, PC Cristo Demolition, Inc.

Couch White, LLP Dorfman-Robbie, CPAs, PC

N.E. Harris Associates, Inc. Fuller & O’Brien, Inc.

McD Mechanical, Inc. N.E. Harris Associates, Inc.

McGraw-Hill Construction McLeod Systems, Inc.

Rose & Kiernan, Inc. NES Rentals

Sheridan Supply Corp. Paychex, Inc.

Southern Tier Insulations, Inc. S & O Construction Services, Inc.

Teal, Becker & Chiaramonte, CPAs Schenectady Steel Co., Inc.

E.W. Tompkins Co., Inc. Ten Eyck Group

Vellano Bros., Inc. Western Building Restoration, Inc.

The Woodward Company

MEMBER ANNIVERSARY (Go Top)

In October, the following member has reached a milestone anniversary as a member of NESCA. Thank you very much for your continued support!

Five Years – Allied/Keystone Building Supply