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WATCH THOSE WEASEL WORDS Design Delegation Reminder (Go Top)

It has recently been brought to our attention that a number of architects/engineers may be stamping shop drawings submitted by contractors and subcontractors with designations stating something less than the “reviewed and approved” required by the State Education Department. NESCA members are reminded that in 1996, the NYS Board of Regents amended its rules governing the delegation of design responsibility to contractors and subcontractors on construction projects. Section 29.3(b)(2) of the rules as amended states in part:

(a) Such specifically defined design work shall be limited to project components ancillary to the main components of the project.

(b) The delegator shall specify in writing to the delegatee all parameters which the design must satisfy.

(c) The design function shall be required to be performed in accordance with performance specifications established by the delegator.

(d) The delegatee shall be required to be licensed or otherwise legally authorized to perform the design work involved and shall be required to sign and certify any design prepared.

(e) The delegator shall be required to review and approve the design submitted by the delegatee for conformance with the established specifications and parameters and such determination shall be in writing.

(f) The delegator shall be required to determine that the design prepared by the delegatee conforms to the overall project design and can be integrated into such design and such determination shall be in writing.

Members engaged in contracts or subcontracts requiring you to provide design services should make sure that the project architect or engineer approves the design you have submitted on your shop drawings. Shop drawings stamped with what the courts have termed “weasel words” such as “reviewed”, “checked”, or any other language falling short of approval, should raise a red flag and are contrary to the NYS Board of Regents Rules. Members who encounter projects where your design services are not being approved by the project architect or engineer should contact the NESCA office.

MEMBERS ASKED TO COMPLETE ANNUAL BPI INFORMATION FORM (Go Top)

One of the most important services NESCA offers its members is the Business Practices Interchange (BPI). The BPI allows members to obtain accurate, first-hand information on the business practices of general contractors, developers and owner-builders.

All members were recently mailed, and asked to complete our annual Business Practices Interchange listing form. The BPI is a referral service, and we merely ask members to provide us with the names of contractors you have done business with during the preceding twelve months. This information will then be entered into NESCA’s database. Members seeking information about a particular contractor may then contact the NESCA office and will be referred to other members who have recently done business with that company.

Members are encouraged to return your completed BPI form to the NESCA office as soon as possible. This service is totally member-driven and will only work if completed forms are returned. The more completed forms we get back from members, the more comprehensive our 2002 BPI database will be and the better the system will be able to benefit everyone.

PRESIDENT’S MESSAGE (Go Top)

On February 11th, I had the pleasure of attending a dinner meeting at the Fort Orange Club in Albany with a few NESCA members, NESCA staff and our new legislative sponsor in the NYS Assembly. As president of NESCA, I was asked to attend this dinner primarily to get the opportunity to meet and discuss NESCA’s legislative program with Assemblyman Ron Tocci. Mr. Tocci recently took over sponsoring our legislative program following the retirement from the Assembly of our long-time sponsor, Eric Vitaliano.

While the dinner was largely social in nature, I also learned something very important about NESCA and our state affiliate, the Empire State Subcontractors Association (ESSA). As members of NESCA, many of us read the Newsletter each month and therefore have a general understanding of the work NESCA/ESSA does to protect subcontractor/supplier interests in the Legislature. However, at this dinner I was able to gain a renewed appreciation for how much “behind the scenes” work is done on our behalf. Our association, through our staff and lobbyist, not only vigorously lobbies for a full package of pro-subcontractor bills each year, but also reviews and monitors literally thousands of other bills introduced during the legislative session. It is extremely important that subcontractors and suppliers receive this representation in the State Legislature. I hate to think about some of the bills that would pass and get signed into law if we did not have an organization fighting for us! I hope all members recognize that even if you do not attend NESCA’s meetings and seminars or take advantage of our lien service or other services, NESCA is worthy of your continued support. All of us should continue to support and pay our annual dues to NESCA, if for no other reason, then just for the legislative advocacy our businesses are provided. Let’s face it. None of us has time to do it on our own. That’s precisely why we have NESCA.

As we head into the spring months, I’m pleased to report that NESCA’s program committee, chaired by Jim Elacqua, has scheduled a very interesting and worthwhile series of membership meeting programs through our June meeting. Responding to the many questions and concerns our members have voiced regarding the new apprenticeship training law, our March 14^th speaker will be Don Radly with the Apprenticeship Training Office of DOL. For our April 11^th meeting, we’ve invited Robert Palmer, Director of Construction at the NYS Office of General Services, who will make a presentation on “OGS Project Closeout Procedures”. Our May 9^th meeting will feature Tony Duffy with Dorfman-Robbie, CPAs, who will make a presentation on “Increasing Your Share of Profitable Work Through Pricing Strategies”. And finally, for our June 13^th meeting, we’ve invited Jim Ullery with the Center for Organizational Energy to make a presentation on “Credit & Collections for Subcontractors and Suppliers”. As you can see, the program committee has put together a very nice slate of meeting program topics over the coming months. I strongly encourage members to take advantage of the opportunity to learn and to network at our membership meetings.

Bob Kind

President

LIEN LAW SECTION 39-a REQUIRES PROOF OF WILLFULNESS (Go Top)

On August 13, 2001, the Appellate Division of the Second Department decided the case of Louis A. Ferreira v. R.A. Saccents, et al, 286 A.D.2d 366.

In this case, the Court, citing the New York State Court of Appeals decision in Goodman v. Del-Sa-Lo Foods, 15 NY2d 191, rejected the defendant’s contention that damages claimed under section 39-a of the New York State Lien Law should be the amount by which the lien was overstated. The Court held the penalty to be imposed should be measured only by the amount to have been willfully exaggerated.

Section 39-a of the New York State Lien Law states:

“Where in any action or proceeding to enforce a mechanic’s lien upon a private or public improvement the court shall have declared said lien to be void on account of willful exaggeration the person filing such notice of lien shall be liable in damages to the owner or contractor. The damages which said owner or contractor shall be entitled to recover, shall include the amount of any premium for a bond given to obtain the discharge of the lien or the interest on any money deposited for the purpose of discharging the lien, reasonable attorney’s fees for services in securing the discharge of the lien, and an amount equal to the difference by which the amount claimed to be due or to become due as stated in the notice of lien exceeded the amount actually due or to become due thereon.”

In Goodman, the Court of Appeals held that there is no suggestion (under section 39-a) of an idea that the owner is entitled to recover anything on account of an honest mistake. Recovery cannot be had in the absence of a finding of the items and amount of the willful exaggeration. Inaccuracy in the amount of lien, if no exaggeration is intended, does not void a mechanics lien, willfulness must be shown.

Terence J. Burke, Esq.

NESCA Legal Counsel

SPONSORSHIP OPPORTUNITIES

NESCA is seeking members who would be interested in sponsoring the half-hour reception at future membership meetings. Cost of sponsorship averages $350-$400. Call the NESCA office at 518-869-9800.

BITS AND PIECES (Go Top)

Unemployment Insurance – The State Labor Department has confirmed that New York’s economic slowdown will trigger an increase in unemployment insurance taxes this year. Based on a decline in the state’s UI fund, tax rates are expected to rise by .4 percent, or $34 for each employee earning at least $8,500 annually.

Workers’ Compensation – According to a Standard & Poor’s study released January 9^th, the effects of the September 11 attacks are taking a toll on workers’ compensation insurers. Rates are rising and it is becoming increasingly more difficult for employers to obtain coverage. Catastrophic workers’ comp losses were not an issue before the terrorist attacks, but now large companies grouped in one area are considered a significant risk. In addition to the increased risk of insuring large companies, rate increases are set to take effect in excess of as much as 50 percent nationwide. While many of the world’s major reinsurers announced that they would not provide liability coverage for terrorism after the September 11 attacks, workers’ comp insurance is not allowed to exclude this type of coverage.

Employment – Employment figures released by the NYS Department of Labor show that New York’s private sector job count fell 25,600 in November 2001 to 7,128,900 (seasonally adjusted). From November 2000 to November 2001, the number of private sector jobs in the state declined by 92,200 (1.3 percent) and the state’s unemployment rate in November was 5.4 percent. Most of the job decline occurred in manufacturing, finance, insurance and real estate. From November 2000 to November 2001, employment increased in government, services and construction.

Local Taxes – Local taxes in New York State rose 53 percent, significantly more than inflation, during the 1990s, according to a Public Policy Institute analysis of data released by the Office of the State Comptroller. If local tax increases had been held to the level of inflation over the decade (about 30 percent), taxpayers would have saved some $6.4 billion in 1999. Local taxes in New York totaled $43.4 billion, or $2,412 per person – a figure that was more than twice the national average of $1,158. Tax collections by school districts rose more than 60 percent during the 1990s, or twice the inflation rate, to $15 billion. The sharp increases in school taxes occurred despite increases in state and federal aid that were also far above inflation.

D.A. Bennett, LLC Carter’s Trucking & Blacktopping, Inc.

341 Delaware Avenue P.O. Box 69

Delmar, NY 12054 Morrisonville, NY 12962

(518) 439-9966; Fax (518) 439-3117 (518) 563-0303; Fax (518) 563-7277

Contact: Jerry Ardron Contacts: D.W. Carter, Roland Carter

Center for Organizational Energy, LLC Clover Leaf Nurseries, Inc.

1701 Central Avenue 52 East Elmwood Road

Albany, NY 12205 Albany, NY 12204

(518) 869-8600; Fax (518) 862-1258 (518) 465-6074; Fax (518) 462-2482

Contacts: Jim Ullery, Josephine Ashworth Contact: Joe Buono

R.F. Gordon Mechanical, Inc. Halpin Mechanical & Electrical, Inc.

34 Hudson Falls Road 19 Erie Street

South Glens Falls, NY 12803 Albany, NY 12204

(518) 747-8426; Fax (518) 747-8432 (518) 434-0598; Fax (518) 434-0793

Contacts: Ron Gordon, Bill Gordon Contacts: Bill Halpin, Christine Joslin

Hudson Valley TRU Constr., Inc. Chip Kronau Constr. Equipment, Inc.

174 Route 199, Ste #4 P.O. Box 216

Red Hook, NY 12571 Poestenkill, NY 12140

(845) 758-3428; Fax (845) 758-6725 (518) 283-6090; Fax (518) 283-3351

Contacts: Timothy Lydon, Jr., Uwe Kiss Contact: Chip Kronau

APPRENTICESHIP TRAINING OUTLINES AVAILABLE (Go Top)

NESCA has received copies of the Appendix A & B training outlines for construction-related apprenticeable occupations from the Department of Labor. These training outlines represent a minimum standard in terms of work processes and related instruction that is required pursuant to registering an apprenticeship program with DOL. Members who would like to receive a copy of Appendix A & B for a particular trade should contact the NESCA office. Outlines are available for the following trades:

Boilermaker * Bricklayer & Mason * Carpenter * Cement Finisher * Construction Inspector (highway and traffic control) * Dry Wall Taper * Electrical Repairer * Electrician * Electrician (housewire or residential) * Electrician (outside line worker) * Elevator/Escalator Constructor & Modernizer * Glazier * Insulation/Asbestos Worker * Iron Worker (outside) * Skilled Construction Craft Laborer * Lather (carpenter) * Lather (wood, wire & metal) * Linoleum, Resilient Tile & Carpet Layer * Marble Carver, Cutter & Setter * Operating Engineer (heavy equipment) * Operating Engineer (grade & paving equipment) * Operating Engineer (universal equipment) * Ornamental Iron Worker * Painter, Decorator & Paperhanger * Pipefitter * Plasterer * Plumber * Plumber & Pipefitter * Plumber & Steamfitter * Pointer, Caulker & Cleaner * Refrigeration & Air Conditioning Mechanic * Roofer * Sheet Metal Worker * Steamfitter * Stone Mason * Terrazzo Worker * Tile Setter * Tile, Marble & Terrazzo Finisher *