20TH ANNUAL TRADE SHOW OCTOBER 12^TH Go Top

Business owners and managers 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 20th Annual Trade Show on Thursday, October 12, 2000 at the Century House in Latham. The Trade Show, which will be held from 5:00 - 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, temperature controls, fasteners and fencing products are among the many products and services which will be on display at the Trade Show.

It is anticipated that all available exhibit space will be sold out with approximately 50 exhibitors on hand, and total attendance at the Trade Show 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. Lots of 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 3 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 $20 per person for advance registrations and $25 at the door. To register to attend the trade show, contact the NESCA office at (518) 869-9800.

GOVERNOR SIGNS ESSA LIEN DURATION BILL Go Top

On August 23, 2000, Governor Pataki signed ESSA’s “Lien Duration Bill” as Chapter 324, Laws of 2000. The signing of this bill into law marks the 31st legislative success for NESCA’s state affiliate since 1975.

This legislation extends the duration of a public improvement lien from six months to one year. The bill also provides for a limit on the number of extensions of both private and public improvement liens which will be allowed.

Private mechanic’s liens have long had a one-year duration period. Thus, this legislation will make consistent the duration of liens for private and public improvements. By extending the duration of liens on public improvements to one year, subcontractors and suppliers will have a more reasonable initial time period to secure payment or negotiate a suitable settlement without inadvertently losing their lien rights. The new law will become effective on January 1, 2001.

PRESIDENT’S MESSAGE Go Top

NESCA’s first membership meeting of the 2000-2001 year was held September 14, 2000 at the Century House, and by all accounts our new meeting format was a great success! Approximately 115 members and guests attended the meeting and were treated to a very interesting and practical program by Walter Breakell, Esq. of Breakell and Couch, P.C. Walter made our first “mini-seminar” presentation of the new year on Lien Law Article 3-A Trust Funds, and it was clear that this is an area of the law in which he has had extensive experience representing subcontractors and suppliers.

Walter made many practical observations about New York’s trust fund law, including how subcontractors and suppliers can use this law to help collect money owned on construction projects, and what actually happens in an Article 3-A legal action. Specifically, he reviewed issues such as what constitutes a trust under Article 3-A; who is subject to the provisions of the law; what are the legal consequences for a contractor who diverts construction funds; how does a bankruptcy filing impact on trust beneficiaries; what records are contractors required to keep under Article 3-A and much more. Members who attended this meeting were also provided some sample letters and other useful handouts to take with them. Members who did not attend this meeting really missed out on some very important and beneficial information. Those who didn’t attend also missed out on the opportunity to win a free membership in NESCA next year. One member, however, didn’t miss this opportunity. When we held our attendance incentive drawing at the end of the meeting, Mike DeLeonardis with M.V.P. Construction Co. was there to hear his company’s name called, and therefore will receive a free membership in NESCA in 2001-2002!

Our next regular membership meeting of the year will be held on November 9, 2000 at which time Kevin Laurilliard with McNamee, Lochner, Titus and Williams will present a mini-seminar on “Scope of Work”. I strongly urge members to attend this meeting, and bring others from your company as well to receive a good education on how to deal with scope of work issues which arise on a job-to-job basis. We’re already putting together lots of handy written materials to supplement Kevin’s presentation, so I can assure you this is a meeting you won’t want to miss!

NESCA will not hold a regular membership meeting in October, but instead will host our 20th Annual Trade Show at the Century House on October 12th. We expect approximately 50 exhibitors will be on hand displaying a huge variety of commercial construction products and services. The NESCA Trade Show is the premier commercial construction industry event of the year in Northeastern New York. Not only do NESCA members attend the show, but we also invite general contractors, architects, engineers, manufacturers, building owners, and public works officials. Trade Show chairman Randy Parent with MarJam Supply expects over 500 will attend this year’s Trade Show. All members were recently mailed information and registration forms for the Trade Show. If you have any questions about the Trade Show, please contact the NESCA office. I look forward to seeing you on October 12th!

Steve Dewey

STRICT CONSTRUCTION OF W.C. LAW REQUIRED FOR OWNER TO RECOVER UNDER 3RD PARTY ACTION Go Top

The Supreme Court, Appellate Division, First Department recently held that the injuries sustained by an employee did not rise to the level of “grave injury” so as to permit the owner, under the NYS Worker’s Compensation Law, to bring a third-party complaint for contribution and indemnification against the employer. Barbieri v. Mount Sinai Hospital, et al., 706 N.Y.S., 2d 8 (1st Dept. 2000). This holding is important to employers and owners in that it is the first appellate decision addressing the question of what constitutes a “grave injury” under the W.C. Law as amended in 1996. The Court strictly constructed the statutory requirements which constitute “grave injury”, protecting employers from third-party claims.

Plaintiff Kevin Barbieri (“Barbieri”) was a carpenter employed by third-party defendant Universal Dry Wall System (“Universal”). Universal had been hired by defendant/third-party plaintiff Mount Sinai Hospital (“Mount Sinai”) to install insulation to a portion of the hospital’s ceiling. Plaintiff, while working at the site, fell through an unguarded and unmarked access panel underneath debris on the workers’ walking surface. Plaintiff landed on the floor approximately thirty feet below.

Plaintiff commenced an action under various sections of the NYS Labor Law, including the Scaffold Law, alleging numerous “severe and permanently disabling injuries.” Mount Sinai then commenced a third-party action in contribution and indemnification against Universal, alleging the negligent supervision and protection of Universal’s employee. Universal asserted an affirmative defense under W.C. Law Section 11, arguing that contribution and indemnification were barred insofar as plaintiff had not suffered a “grave injury” under that law.

In 1996, the New York State Legislature amended New York W.C. Law Section 11 to bar third-party actions against employers who carried worker’s compensation insurance, unless the injured party had suffered a “grave injury”. Section 11 places upon the third-party (whom the injured employee had sued, thus prompting a complaint for contribution or indemnity against the employer) the burden of proving “through competent medical evidence” that such employee suffered a “grave injury”. The law defines “grave injury” to mean one or more of the following:

Death, permanent and total loss or use or amputation

of an arm, leg, hand or foot, loss of multiple fingers, loss

of multiple toes, paraplegia or quadriplegia, and total

and permanent blindness, total and permanent deafness,

loss of nose, loss of ears, permanent and severe

facial disfigurement, loss of an index finger or an

acquired injury to the brain caused by an external

force resulting in permanent total disability.

Following discovery, a trial court entered summary judgment in favor of the employer, finding that the requirement that plaintiff had suffered a grave injury as defined in the law had not been met. The Appellate Court affirmed.

The Court reviewed the legislative history of the 1996 amendment to the W.C. Law, noting that the point of the statutory amendment limiting third-party actions to those involved in “grave injury” to the employee was to abolish the employee’s ability to circumvent the W.C. Law as a remedy against employers for workplace injuries by allowing injured employees to sue negligent third parties who could then seek recovery from the employers.

The Court was faced with the issue of whether plaintiff’s injuries constituted “grave injury” under the W.C. Law. If they were not, Mount Sinai’s action against Universal had to be barred. The Court rejected the contention that plaintiff had suffered “grave injury” as plaintiff alleged only facial scarring, not permanent and severe facial disfigurement as required by the statute. Further, plaintiff’s cognitive injuries, although alleged to be permanent, were not described as involving a “total disability” as required by the statute. Also, plaintiff’s medical reports submitted in support of Universal’s motion did not prove that plaintiff’s injuries rose to the level of “permanent and total disability”. The Court thus imposed a high bar on owners to satisfy strict construction of the W.C. Law.

Mount Sinai also contended that W.C. Law Section 11 was unconstitutional on due process and equal protection grounds. The Court disagreed, holding, “while the amendment may be contrary to the interest of property owners, and there may have been competing policy considerations, it nevertheless, does tend to recreate the conditions originally developed by the Worker’s Compensation system.

In conclusion, employers and owners should keep in mind the Court’s strict construction of the statutory requirements that an injury under W.C. Law Section 11 be both permanent and total, and the high burden imposed on the third-party plaintiff to prove such requirements.

Terence J. Burke

NESCA Legal Counsel

20TH ANNUAL TRADE SHOW OCTOBER 12TH Go Top

20TH ANNUAL TRADE SHOW OCTOBER 12^TH Go Top