Analyzing and Defending Delay Claims

RECENT ISSUES IN ANALYZING AND DEFENDING

CONSTRUCTION DELAY CLAIMS

Mark Seiden, Esq.

OVERVIEW

In addition to the five traditional phases of professional construction services-- (1) conceptual design; 2) design development; 3) construction documents; 4) bidding and negotiation; and, 5) construction administration-- many design professionals and owners often experience a sixth phase--the claims phase. Few industries experience the magnitude and volume of claims as are found in the construction industry. Of the types of claims design professionals encounter, few are as complex and troublesome as construction delay claims.

In most construction projects, the single largest expense is time. Time includes man hours, equipment hours, overhead, material and labor cost escalations, capital resources, etc. As a result, delay claims remain a significant source of construction litigation. In spite of efforts to reduce these claims through laws, contract language, partnering efforts, project tracking, ADR and risk management education, construction delay claims remain a frequently litigated issue. Therefore, judicial opinions concerning construction delay and concomitant problems must be regularly scrutinized for insights and trends as to how courts address these matters.

This paper will attempt to provide an overview of' recent trends in the case law and legislation concerning certain significant issues that are often present in delay damage claims. This includes:

1) Written Notice/Quantification of Delay Claims,

2) Enforceability of "No Damage for Delay Clauses" in Construction Contracts,

3) Differing Site/Changed Condition claims,

4) Delay claims predicated upon Requests for Information and Shop Drawing Turnaround time,

5) Components of Delay Claim Analysis:

a. Excusability of Delay

b. Compensability of Delay

c. Criticality

d. Concurrency

e. Proximate Causation

6) Enforceability of Owner-Administered ADR Provisions

1) Notice/Quantification of Delay Claims:

Construction contracts typically contain provisions requiring prompt written notice of any act or event that causes a delay. This is often a condition precedent to a contractual right to request an extension of time to complete the Project and to recover monetary damages due to the delay. The purpose of these provisions is to provide the owner and architect/engineer with prompt notice so a timely investigation may be undertaken to determine the validity of the claim. The owner is generally not responsible for adjustment of time and/or price unless he receives timely written notice of the claim.

The notice provision often has a salutary effect on potentially major disruptions by: (1) alerting other parties to problems about which they may not be aware; (2) bringing parties together to discuss options to resolve or mitigate; (3) giving the owner the option of not proceeding if time or costs are too great; and, (4) allowing parties to set up systems to track actual delays from particular events and closely track the resulting costs.

Under most circumstances, a notice of claim must be made within a certain finite time frame specified in the contract. Contract notices vary, but can be as short as five days and as long as ninety days.

A written cost estimate is usually required within fifteen to thirty days thereafter.

In public construction projects, notice requirements are set forth by statute. For example, the Contract Disputes Act sets out the notice requirements for claims against the Federal Government. Compliance with the relevant statutes is mandatory to maintain a claim against the government.

In June of 1998, in a decision that is bound to be frequently cited in support of strict enforcement of written notice of claim requirements, New York's highest Court reaffirmed the necessity of strict contractor compliance with Notice requirements. In A.H.A. General Construction Inc. v. New York City Housing Authority², the New York Court of Appeals rejected a contractor's claim for more than $900,000 against the New York City Housing Authority based on the contractor's failure to comply with the Housing Authority's contract requirements for the performance of disputed work. The Court held that the only way for the contractor to be excused from these contract provisions would be to show that the Housing Authority prevented or hindered compliance with the notice and reporting requirements of the contract.

The contract at issue required, inter alia that while the contractor was performing disputed work, the contractor would furnish daily written reports stating the name of each worker, the number of workers employed in performing the work, and the quantity of any materials used in the performance of the work. The contract stated that the contractor could not assert any claim concerning the disputed work unless it strictly complied with all the requirements relating to the provision of information with respect to such claims. The contractor failed to comply with the daily record keeping, and at the end of the job submitted a list of claims for extra work..

The contractor furnished evidence that on several occasions, the Housing Authority acted in bad faith in its dealings with the contractor. Nevertheless, the Court of Appeals held the public agency's bad faith was insufficient to relieve the contractor from strict compliance with the notice provisions of the contract. The contractor, while presenting evidence of bad faith, was not able to prove that the Housing Authority did anything to prevent it from submitting the notice documentation required under the contract.

The Court of Appeals highlighted the notice and information requirements for public agencies to be notified immediately of deviations from the project's budget thus allowing the public agency to take action to avoid or minimize unnecessary expense. The court held that notice and information requirements were conditions precedent to compensation for extra work?

Practice Pointer: A properly drafted notice of claim provision should include a definite time frame (effectively, a statute of limitations), a provision for a prompt "all hands meeting," and a complete list of the documents which must be presented with the final claim. These documents should include copies of work logs with entries made daily containing the names of the workmen used on the extra work, and the nature and quantity of any materials, physical plant and equipment used during the work. A well-drafted contract should also contain a "complete integration clause," indicating that the contract represents the entire agreement between the owner and the contractor, thus barring a claim by the contractor of waiver or some other side agreement to vary or alter the terms of the contract.

2) Enforceability of "No Damage for Delay" Clauses in Construction Contracts

To comfort owners concerned about escalating costs and lack of price certainty, many construction contracts contain a "No Damage for Delay" clause. These clauses are designed to excuse an owner from contractual liability for damages due to delay, regardless of how the delay was caused. Many industry professionals feel "No Damage for Delay" clauses are beneficial to a Project because these clauses: (a) provide fiscal stability to the project by giving the owners' relative certainty as to the overall costs of the project; (b) may circumvent litigation concerning cause and apportionment of liability for delays; (c) may cause a contractor who knows he is locked into a certain price to increase his efforts to insure timely performance as he knows there is only a slim chance of recovering delay damages from the owner; and, (d) in public contracts, these clauses benefit the public by insuring that the lowest bid is in fact the lowest bid, and not merely a tactic to underbid competitors with the intention of recouping money once the project gets underway.⁴

On the other hand, "No Damage for Delay" clauses can have their drawbacks; owners must be prepared to pay for this added comfort in the form of higher bid prices. When a contract is competitively bid, contractors may have an economic incentive to overcompensate for unforeseen contingencies. Other negative effects include: a) diminution in competition, as many quality contractors may not even bid on projects when "No Damage for Delay Clauses" are required; b) risk of contractor default if unforeseen delays are encountered in good faith but additional compensation is contractually precluded; and, c) a "No Damage for Delay" clause may encourage the contractor to "cut corners," leaving the integrity of the entire project in doubt.⁵

a) General "No Damage for Delay" clauses

A general "No Damage for Delay" clause attempts to restrict any recovery for any delay, irrespective of the cause, including acts of the owner. Many courts however have refused to construe such clauses strictly, and have only barred recovery for those delays reasonably expected to be encountered at the inception of the contract.⁶

b) Specific "No Damage for Delay" clauses

These clauses prevent recovery of damages due to specified causes such as the owner's failure to properly ascertain the depth of the water table, to provide reasonable access to the work site, or to coordinate site schedules with the relevant parties. These specific clauses have generally been held enforceable by courts?

c) Exceptions (Generally)

While most courts will generally enforce "No Damage for Delay" clauses, there are a few exceptions to enforcement. In Corinno Civetta Construction Corn. v. City of New York⁸the New York Court of Appeals affirmed a contractor's right to sue for damages despite a "No Damage for Delay Clause" in the contract. The court held that exceptions arise when: (1) delays are caused by the contractee's bad faith or its willful, malicious or grossly negligent conduct; (2) delays are uncontemplated at the time the contract was awarded; (3) delays are so unreasonable that they constitute an intentional abandonment of the contract by the contractee; and, (4) delays which result from the contractee's breach of a fundamental obligation of the contract. Other jurisdictions have carved out similar exceptions to the enforceability of "No Damage for Delay Clauses."⁹

d) Legislative Inroads

On December 21, 1998, New York's Governor George Pataki vetoed legislation to put an end to the "No Damage for Delay" clauses in state public contracts. The bill¹⁰would have required all public owners to include a delay clause in their construction contracts to permit contractors to recover costs incurred by the contractor due to excusable delay, based on a good faith estimate of the public entity's liability. The Governor noted the ambiguity of the bill's language in his veto memo:

By requiring public entities to place such clauses in all construction contracts, with no ability to define the terms or negotiate the circumstances under which causes of action will arise, the bill exposes the State and other public entities to costly and complex litigation over the meaning and application of these ambiguous... Rater than alleviate delays in public construction projects, these open-ended terms may tie up construction projects for protracted periods due to arbitration proceedings and legal actions...[I] am also concerned that the bill would exacerbate the considerable costs and problems attendant to the Wicks Law.

Practice pointer: In order to ward off an argument that a no damage for delay clause is unenforceable on the grounds that the specific delay-causing event was not contemplated by the contracting pa flies at the time of bid, it is wise to expressly enumerate in the contract all the delay causing events which the contractors contemplate. This is often a long, boilerplate list of potential delay causing events but can be effective in support of a summary judgment motion by the owner and/or the architect or engineer.

3) Differing Site Conditions

Delay attributable to differing site conditions arise when there is change in the knowledge about an existing condition; that is a condition existing at the time the contract was executed, but which the contractor was unaware (or was not reasonably expected to be aware), at the tine the contract was executed. In Federal contracts, these conditions are described as "differing site conditions." The A.I.A. standard form agreements refer to them as concealed or unknown conditions. The encountering of a differing site condition often leads to delay in completion of the project while the unexpected condition is remedied and/or plans are modified.

Despite many contractors' belief to the contrary, there is no common law right to extra compensation

for a latent or changed site condition. A changed condition claim exists only by an express contract provision or as a result of fraud or misrepresentation¹²by the owner.¹³

In order to circumvent problems concerning differing site conditions many contracts contain a "differing site conditions" clause which defines and apportions risk of unknown site conditions and provides a method of recovery. Without such a clause, the contractor's refusal to move ahead, irrespective of the condition encountered, may be deemed a breach of contract. The inclusion of the differing site condition clause benefits the owner in that it: (a) allows the contractor to be more competitive in bidding, as unexpected contingencies are recoverable; and (b) dissuades the contractor from abandoning the job on the discovery of a materially differing site condition, because increased costs are compensable.

These clauses may also benefit the contractor as he is fairly compensated if he encounters conditions which he could not reasonably have been expected to encounter; and he need not be concerned that he must incorporate a contingency into his bid, allowing the initial bid package to be more accurate and competitive. Differing site conditions clauses come in two categories:

Type I: Actual conditions are materially different from those reflected in the contract documents such as high rock elevations, or latent subsurface water conditions.

Type II: Actual conditions differ materially from those normally encountered in this type of work. This may include unmarked utilities, subsurface vaults or other latent conditions peculiar to a particular site.

A recent decision emphasizing the importance of pre-bid site exploration in order to sustain a claim of good faith reliance on the owner's representations may be found in Meyers Companies. Inc. v. U.S.¹⁴ Meyers held that good faith reliance upon the Differing Site Conditions clause does not necessarily entitle a contractor to an equitable adjustment of price when Type I differing site conditions, (i.e., "subsurface or latent physical conditions at the site which differs materially from those indicated in th[e] contract") increase the cost of performance.

Success on a Type I Differing Site Conditions claim turns on the contractor's ability to demonstrate that the conditions indicated in the contract differ materially from those it encounters during performance. The conditions actually encountered must have been reasonably unforeseeable based on all the information available to the contractor at the time of bidding. The contractor must also show that it acted as a reasonably prudent contractor in interpreting the contract documents and reasonably relied on the indications of subsurface conditions in the contract.

Plaintiffs differing site conditions claim fails because the existence of shallow water conditions which could delay work for a significant period was reasonably foreseeable and did not differ materially from the indications in the bidding documents.

To arrive at a reasonable interpretation a contractor must consider all relevant documents in the solicitation. Thus, a contractor will be found to have interpreted the contract unreasonably where it can be shown that its interpretation is unsupported by the contract indications or that it is based on one contract indication to the exclusion of others. [Citations omitted].'⁵

As a flip side to a differing site condition clause, many construction contracts contain a site inspection clause which permits or requires the contractor to conduct a geotechnical exploration to become thoroughly familiar with the site, prior to submitting its bid on the job, and the owner expressly disclaims responsibility for unknown site conditions. These clauses attempt to shift the entire risk of the discovery of a differing site condition onto the contractor.

A variation on the site inspection clause is known as a cost recovery clause which the contractor is entitled to recover direct costs incurred in connection with the differing site condition but not delay damages or other impact costs.¹⁶

The existence of a differing site condition clause does not relieve the contractor of its obligation to thoroughly investigate the site pre-bid, pursuant to the site inspection clause. If a reasonably thorough investigation had revealed a particular condition, a contractor will be denied recovery for changed conditions, even if the contract contains a differing site condition clause.

A site investigation clause does not nullify the provisions of the differing site conditions clause, nor does it require the contractor to discover, at his peril, conditions at the site not reasonably ascertainable by a pre-bid site investigation. A contractor is chargeable with the knowledge reasonably ascertainable on a proper site investigation by a prudent bidder, in the absence of any misrepresentation or withholding of information by the owner.¹⁷

A central issue in actions for Type I differing site conditions are whether the owner misrepresented facts about the site to the contractor. Not all information provided to a contractor is a representation of the facts about the site. The disclaimer notices can be an effective way to shift the risk to the contractor. A broadly drafted site inspection clause, coupled with the absence of a Differing Site Condition clause, will make it more likely that responsibility for latent soils conditions will shift to the contractor.

However, courts will not enforce such clauses if they are deemed unreasonable as a recent Pennsylvania decision illustrates. In Pennsylvania Department of Transportation v. DiMarco & Co. Inc.,'⁸ the court ruled a pre-bid site inspection clause does not necessarily shift the risk of subsurface conditions to the contractor.

During the reconstruction of a highway, the contractor encountered substantially different conditions from what had been expected, and the contractor brought a claim for extra compensation due to the differing site condition. The Department of Transportation denied the claim, citing the language in the contract, which read, in relevant part:

The contractor further covenants and warrants that he has had sufficient time to examine the site of the project to determine the character of the subsurface materials to be encountered; that he is fully aware and knows the character of the subsurface materials and conditions to be encountered....

The contractor sued the State Transportation Department arguing the pre bid site inspection clause did not operate to shift all the risk of subsurface problems to the contractor. The Court agreed, holding:

[The determining factor remains whether it was reasonable to expect [the contractor] to dig beneath the surface of the road in order to test for subsurface soft spots prior to submitting its bid [in order to do so] would have necessitated digging up part of the roadway which would be impractical and overly burdensome...the DOT made no arrangements to halt traffic to permit such a digging.'⁹

This case demonstrates that a site inspection clause does not always shift the entire burden of a differing site condition onto the contractor. However, an owner can minimize the risk posed by differing site conditions by ensuring complete and open access to potential bidders.

Practice Pointer: Regardless of whether or not a contract contains a differing site condition clause, it is important to include a broadly drafted site inspection clause. In the event a claim is made, contractors must present complete and accurate evidence of their efforts to comply with the site inspection clause prior to submitting its bid.

4) Delay Claims Predicated upon Requests for Information and Shop Drawings

Shop drawings and Requests for Information (RFI's) are essential elements of construction. They bridge the gap between the design set forth in the plans and specifications and the details and specifics necessary to fabricate material and install the work in the field. Contractors always run the risk of altering a design while converting it into a shop drawing. If a shop drawing change results in a design defect that affects construction, the contractor assumes the liability for that defective design. To minimize the risk that a material alteration exists between the final working drawings and shop drawings, the shop drawings are sent to the architect and/or the engineer for review prior to actual construction. Any delay in processing and returning the shop drawings or the RH may result in a delay to the project. When a contractor's performance is contingent upon the timely processing of shop drawings and/or RFI's by the A/B, and the processing is untimely, such delay may be compensable to the contractor.

Contractors that "lowball" their bids to win public contracts often intend to make back their profit through change orders and delay claims. They often contend that the architect or engineer was materially late in responding to their RFI's and processing their shop drawings. They may claim that uncoordinated construction documents required numerous change orders and RFI's resulting in a loss of efficiency, out of sequence work and an accelerated construction schedule that caused interference among the trade contractors.

Shop drawing submissions and processing is, however, a two way street. The contractor must timely submit properly detailed shop drawings if he expects them to be timely processed by the design professionals. A contractor who "dumps" poorly detailed shop drawings on the architect and then cries that untimely processing is delaying his performance, cannot count on an equitable adjustment of price and time.

The Supreme Judicial Court of Massachusetts recently had occasion to reaffirm this rule in Peabody N.E. Inc. v. Town of Marshfield²⁰ when it held:

Contractors like the plaintiff cannot recover on the contract itself without showing complete and strict performance of all its terms. The plaintiff did not satisfy the strict terms of the contract when it failed substantially to complete its performance [on schedule]. Moreover, the plaintiff’s claim that this failure was somehow excused is unavailing. While it may be true that a breach caused solely by the other party's behavior is generally excused, the facts here establish that the plaintiff is also to blame for the delayed completion of the work. The master found that the project's delayed completion was caused by the plaintiffs own failure to prioritize equipment procurement ... failure to aggressively manage its schedule with respect to equipment procurement ... delayed submission of initial shop drawings ... and delayed resubmission of shop drawings. These delays, moreover, occurred with several major pieces of equipment aside from the delayed procurement of the pumps for which the town was responsible. Indeed, the master found that 40% of the project remained functionally incomplete… nearly six months after the contract's deadline.

Consequently, it cannot be said that the plaintiff’s failure to complete on time was caused solely by the towns wrongful rejection of the...drawings. For this reason, the plaintiff’s delay was not excused and thus recovery on the contract was properly denied.²'

Practice Pointer: When confronted with a claim for delay due to a late turnaround of shop drawings it is important to examine the contractor's actions. Did it fail to submit shop drawings consistent with an approved submission schedule? Did it coordinate field requirements with suppliers? Did it perform a timely site investigation which would provide an accurate basis for the shop drawings? Did it note the variances in its shop drawing submittals from the requirements in the specifications?

The owner-contractor agreement should require the contractor to submit a shop drawing submission schedule before proceeding with any work. This avoids the phenomenon of "Shop Drawing Dumping." In addition you may wish to avoid a contractually designated turnaround time, so that a reasonable period of time may be imputed4 consistent with the facts and circumstances of a particular project.

5) Specific Components of Delay Claim Analysis

In order to obtain an extension of project completion time as well as an equitable adjustment of contract price as a result of delay, a contractor must satisfy five prerequisites:

1) The delay was excusable (i.e., not foreseeable or controllable by the contractor, or a contractually assumed risk);

2) The delay was compensable (i.e., could not be prevented by the contractor's exercise of reasonable care);

3) The delay was critical (i.e., impacts the overall completion of the project and not simply some interim work activity);

4) The delay was not concurrent with contractor-caused and/or controlled delays;

5) The excusable, compensable, critical, non-concurrent delay proximately caused damage to the contractor (i.e., the contractor establishes a logical linkage between the delay causing event and additional project costs).

a) Excusability

Excusable delay occurs upon the occurrence of conditions beyond the reasonable control of the contractor. This may justify an extension of time for completion of the contract and possibly additional compensation. In determining whether there is an excusable delay, the foreseeability of the event and the party who has control over the event are key factors to be examined. To be excusable, the delay must directly affect the ability of the contractor to perform his work. If a delay is excusable, the owner may not terminate the contract or impose liquidated damages. Examples of excusable delays include; design defects, owner directed changes, unanticipated field changes lack of site access, differing site conditions, stop work orders, weather conditions, labor disputes, Acts of God, acts of the government, acts of a public enemy, and judicial actions (such as injunctions or restraining orders).

Non-excusable delays are those for which the contractor assumed the risk, either contractually or by the course of performance. These are foreseeable, controllable or contractually assumed. For example, normal weather conditions, even if severe (e.g., heavy snow in Buffalo in December), inadequate supervision, failure to provide competent labor, untimely shop drawing submissions, improper equipment allocation, failure to coordinate work, failure to complete work consistent with project schedule or milestone dates, are all non-excusable delays. Material non-excusable delays may constitute a breach of contract and

justify a default termination for cause and/or the imposition of liquidated damages.²²

A recent Board of Contract Appeals Decision, Consolidated Construction, Inc.²³emphasizes the importance of accurate record keeping by a contractor when attempting to justify an excusable delay. In Consolidated Construction, Inc., a contractor was not entitled to recover for unusually sever weather conditions because the record did not provide sufficient evidence to conclude that the government refused to grant allowable time extensions for adverse weather. The contractor failed to properly record the occurrence of adverse weather and its resulting impact on the daily quality control reports. Although the daily reports sometimes described the general weather conditions on certain days, the reports did not record the resulting impact of the weather on those days when some work had been performed. The contractor contended that the Government (the owner) refused to consider all eligible impact days and failed to grant appropriate time extensions for weather. The Court disagreed:

The criteria for time extensions included the requirements that the weather had to be more severe than anticipated for the location during any given month, and the severe weather must actually cause a delay to the completion of the project and adverse weather delay days, including days impacted by actual adverse weather, must prevent work on critical activities for more than 50 percent or more of the Contractor's scheduled workday. Even though this construction project was performed entirely outdoors and involved mainly earthwork and paving, the foregoing criteria make clear that not every day, when precipitation, winds or low temperatures were encountered qualified as an adverse weather delay day. Among other things, the specifications required the contractor to protect, maintain and provide adequate drainage for the sub-grade and the base course to keep the sub-base and base course free of foreign matter, and keep the underlying material frost free when placing concrete, and to keep placed concrete warm while curing.

[A]ppellant's adverse weather claim relies on a reconstruction and analysis of weather related data performed by a retained engineering consultant. However, from contemporaneous records of weather conditions at the project site, which we consider more probative...we are not persuaded that the Government either failed to consider all eligible impact delays or to grant appropriate time extensions for weather, or that the [Contractor] is entitled to any additional adverse weather delay days....²⁴

Practice Pointer on Excusable Delay: A well drafted contract should include the elements which

must be proven in order to establish an excusable delay; how these elements must be documented

and presented; notice requirements for excusable delay; and, the remedy that such a delay will afford.

b) Compensability

In general, any delay that could have been prevented by reasonable care and foresight, or that is contractually the responsibility of one party, is compensable to the party who suffers damages as result of a delay. For example, as discussed previously, unforeseen subsurface conditions are often a risk allocated to the owner. Other actions which may give rise to compensability are owner directed design changes, failure to provide site access, owner interference, design errors and omissions, interference of other prime contractors, etc. Many public construction contracts expressly contain a "suspension clause" allowing for any increase in the cost of performance of the contract (excluding profit) necessarily caused by the unreasonable suspension, delay or interruption resulting from a contracting officer's actions or failure to act. ²⁵

In general there are six categories of compensable delays:

I) Owner interference: every contract includes an implied covenant of good faith and fair dealing. Therefore the owner's interference in the prosecution of the contractor's work will entitle the contractor to compensation in addition to time extensions in the absence of a no damage for delay clause.

2) Lack of access: If the contractor is denied access to the job site it may be entitled to compensation in addition to time extensions. The most basic obligation of an owner to a contractor is to make an unobstructed site available to the contractor to perform its work. Failure by the owner to clear the site of obstructions in time for the contractor to begin his work falls under this category of compensable delays.

3) Delayed inspection approvals: In many cases the contractor's ability to perform certain steps in a project depends upon the owner or the owner's architect or engineer inspecting preliminary work. Delays by the owner, the architect, or the engineer in inspecting the work thus causing delays in the project may be compensable to the contractor.

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Pre-suit Indemnification and Release Obtained by Architect (8.1.08)
In Ana Palaguachi et ano. v. 227 34th Street, LLC et al ,MMP&S was successful in obtaining a pre-suit release settlement and hold harmless agreement from a client/owner on behalf of a design firm
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Wrongful Death Case Dismissed by Supreme Court, Affirmed by Second Department (7.24.08)
In Braun v. NBBJ Architecture, MMP&S obtained summary judgment in Supreme Court, Orange County, and the Appellate Division 2nd Dept. affirmed the dismissal of all claims against the architectural firm
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Case Against Engineer Dismissed
In Rosenfeld v. Hudson Valley Stadium Corp, et. al., MMP&S was successful in getting a case dismissed against an engineer brought by a baseball fan injured by a foul ball.
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Case Against Attorney Dismissed (7.10.08)
In DiLascio v. Romano and Ferrante, MMP&S recently obtained a pre-answer dismissal based upon the plaintiff’s failure to properly serve her complaint upon the defendant.
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Limited Discovery Discontinued Against Engineer in Multi-Million Dollar Personal Injury Case 7.10.08
In Wiener v. The City of New York, MMP&S was successful in obtaining a dismissal in a high exposure personal injury claim against an engineering firm involving a bicyclist at a landmark park
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New MMP&S Partners (7.1.08)
Effective July 1, 2008, Marisa Lanza, David Montag and Leo D'Alessandro became partners in the Firm.
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Alleged seven figure property damage claim dismissed due to incomplete service and the motion to restore was denied.
In Middleton v. Rosenberg, et. al., MMP&S was successful on its’ Motion to Dismiss based upon plaintiff’s failure to properly complete service of plaintiff’s Summons with Notice upon MMP&S’ client.
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Refrigeration Subcontractor Granted SJ (6.23.08)
In Rodriguez v. Waldbaums, et. al., MMP&S was successful in obtaining summary judgment for a refrigeration subcontractor in a slip and fall case.
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Out-Of-Possession Landowner Granted Summary Judgment
In Gonzalez v. Copacabana, et. al., MMP&S was successful in obtaining summary judgment for an out-of-possession landowner.
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Snow and Ice Case Dismissed (4.8.08)
In Karen Blaise v. De Tota Corp. and A&T Bagels v. Bedford Construction, MMP&S was successful obtaining summary judgment in favor of a paving contractor with respect to claims for a trip and fall
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Case Against Attorney Dismissed (3.21.08)
In Samuel Pappy v. Franklin H. Blumenfeld, MMP&S was successful in getting a pre answer dismissal for plaintiff’s failure to state a cause of action in a case alleging abuse of process
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Accountants Malpractice Case Dismissed (2.29.08)
MMP&S successfully dismissed an accountants' malpractice action based on the three year statute of limitations in accordance with the recent Court of Appeals decision, Williamson v. Price Waterhouse
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Engineer's Limitation of Liability Clause Upheld (2.26.08)
The New Jersey Appellate Division unanimously affirmed the trial court's grant of summary judgment with respect to the binding effect of a limitation of liability clause.
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Snow and Ice Case Dismissed (2.13.08)
In Johny Gjoni, et al. v. 108 Rego Developers Corp., et al., MMP&S was successful in getting a dismissal for lack of hazardous conditions and lack of notice.
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Motor Vehicle case Dismissed for Lack of Serious Injury (2.5.08)
In Luanne Washington, etc., et al., v. Sherri Cross, et al., MMP&S was successful in getting a dismissal of a complaint in an auto case for lack of serious injury.
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Dismissal of Claim against Engineering Firm upheld on Appeal
In Westbank Contracting, Inc. v. Rondout Valley Central School District, et. al. MMP&S was successful in getting a third-party claim against a construction manager and engineering firm dismissed
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Unlawful Arrest - Summary Judgment Granted (12.4.07)
In Villano v. The Incorporated Village of Old Brookville the court granted our motion for summary judgment dismissing the case against The Village of Old Brookville arising out of an alleged false
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Law Prep for the Claims Rep Presentation
Dean Milber and Andrew Pisanelli presented at Nationwide's 1st Legal Summit
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Insurance Guideline Presentation
Dean Milber and Mark Seiden presented at CNA's Accountants & Lawyers 2007 Annual Defense Network Program
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New Florida Location Opens (10.1.07)
MMP&S is pleased to announce the opening of our new location in Boca Raton, Florida!
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New MMP&S Partner (10.01.07)
Effective October 1, 2007, Marybeth Cullinan became a partner in the Firm.
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New MMP&S Partners (7.1.07)
Effective July 1, 2007, Susan J. Stromberg and Bruce R. Calderon became partners in the Firm.
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Three-year Statute of Limitations Now Applies to New York Land Surveyors
Until recently, the State of New York had not clearly defined the period of time wherein an action for damages could be initiated against a licensed Professional Land Surveyor in connection with
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Building a Bridge Between Professional and General Liability
Your Design Professional client has been sued for negligence in connection with a construction project. It's general liability insurance carrier may have more coverage obligations to your client
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Analyzing and Defending Delay Claims
In addition to the five traditional phases of professional construction services--1
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Pre-Answer Discontinuance for Structural Engineer (9.01.09)
In Board of Managers of the Brownstone Lane Condominium v. Manhattan Townhouse Equities, LLC et al. MMP&S was successful in obtaining a voluntary stipulation of discontinuance…
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Appellate Victory for Ballpark Engineer (9.18.09)
In Judith Rosenfeld v. Hudson Valley Stadium Corp. et al. MMP&S was successful on an appeal in which the Appellate Division, Second Department, affirmed the dismissal of a complaint against a civil..
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Appellate Victory for Not-For-Profit Fraternal Organization (10.02.09)
In Laurie Carmer, et al. v. Odd Fellows and Rebecca Nursing Home, Inc. & Odd Fellows Home Association of the State of New York, MMP&S was successful on an appeal in which the Appellate Division...
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Summary Judgment Granted in Favor of Architect Prior to Trial (10.5.09)
In Lucy Kung and York Yu Perng Tang v. Jimmy Zheng a/k/a Zhuo Ping et al., MMP&S was successful in dismissing a lawsuit against an architect less than three weeks prior to trial.
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Voluntary Discontinuance Obtained in Breach of Contract Case (10.15.09)
In Clara Caldwell and John Caldwell v. Two Columbus Avenue Condominium et al., MMP&S succeeded in having this matter voluntarily discontinued against an engineering firm
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