Jordan R. Pavlus recently obtained a decision from the Fourth Department Appellate Division which clarified the required method of proving delay damages on a commercial construction project. In the case, an electrical subcontractor attempted to prove its delay/disruption damages by comparing its actual costs to its bid calculations. The Supreme Court granted the electrical subcontractor summary judgment on this basis. On appeal, the Fourth Department reversed this ruling, stating ” “[I]t has repeatedly been held improper to prove excess labor costs by comparing the total labor costs for the project with the bid estimate for the labor, because of[, among other things,] the inherent unreliability of the price elements of a bid.”

Ultimately, the Court held the measure of damages was a matter for the trier of fact. This is an important Fourth Department Appellate Division case clarifying how subcontractors can prove delay/disruption damages.

The case can be found at LPCiminelli, Inc. v. JPW Structural Contracting, Inc., 217 A.D.3d 1380 (4th Dept. 2023).

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Jordan R. Pavlus recently obtained a decision from the Fourth Department Appellate Division which re-affirms that a bond claimant which has no direct contract with the general contractor must establish that notice of the bond claim was “actually received.” State Finance Law section 137 provides that a bond claimant without a direct contract with the general contractor must provide notice of its bond claim to the general contractor within 120 days of its last labor or material on the project. The statute provides that service of the notice may be made via registered mail, personal delivery, or some other method, so long as the notice is “actually received” within 120 days by the general contractor.

The supplier in the case took the position that it provided notice to the general contractor and that it was “actually received” within 120 days. The parties filed competing motions for summary judgment on this point. The Supreme Court granted the supplier’s motion for summary judgment, but the Appellate Division reversed, finding that a factual issue existed regarding whether the notice was “actually received” within 120 days of the last labor or material furnished on the project.

The case can be found at Vulcraft of New York, Inc. v. Solvay Iron Works, Inc., 176 A.D.3d 1630 (Fourth Dept. 2019).

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Jordan R. Pavlus recently obtained a decision from the Fourth Department Appellate Division which re-affirmed that owners must strictly adhere to the termination for cause provisions in subcontracts.

The appeal centered on a heating and plumbing contractor who was terminated from a project without the required prior written notice and opportunity to cure. The Supreme Court denied the contractor’s motion for summary judgment, but the Appellate Division modified that decision and held that the owner failed to comply with the termination for cause provisions in the contract. As a result, the Appellate Division ruled that the owner was liable for breach of the contract.

This is an important case for contractors and owners because it clarifies that termination for cause provisions must be strictly followed.

Black River Plumbing, Heating and Air Conditioning, Inc. v. Board of Eduction Thousand Islands Central School District, et al, 175 A.D.3d 1051 (Fourth Dept. 2019).

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Jordan R. Pavlus was recently named to the pro bono honor roll of the District Court for the Northern District of New York.  The honor roll comprises attorneys who have accepted an
appointment to represent at least one civil litigant in the District Court for the Northern District of New York without compensation. The honor roll states “[t]he Board of Judges for the United States District Court for the Northern District of New York extends a special thank you to these dedicated professionals who serve the legal needs of the economically underprivileged in their community.”

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Jordan R. Pavlus recently settled a multi-million dollar construction dispute prior to trial.  The settlement was reached after a lengthy negotiation period between the parties and the assigned Supreme Court Justice.  At the conclusion of the negotiations, the settlement was put on the record in open court to ensure that the parties would carry out the agreed upon terms.

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Jordan R. Pavlus was recently appointed to serve on a three arbitrator panel by the American Arbitration Association.  Mr. Pavlus serves on both the construction and consumer panels for the AAA, which is the preeminent alternative dispute resolution organization in the United States.

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Jordan R. Pavlus recently obtained a decision issuing a protective order and quashing a subpoena to a non-party witness.  The underlying dispute was between a developer and general contractor and involved a large commercial development.  The general contractor sought to depose a non-party witness who performed construction consultation duties for the owner on the project. Mr. Pavlus opposed the subpoena and obtained a decision quashing it and granting the protective order.  Due to the strategic advantage this created in the litigation, the case settled soon thereafter.

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Jordan R. Pavlus recently obtained an arbitration award for a subcontractor after a multi-day AAA arbitration.  The general contractor was withholding the contract balance from the subcontractor based on claims of delay and supplementation of the subcontractor’s work.  Mr. Pavlus obtained an arbitration decision which dismissed the general contractor’s delay/supplementation backcharges and also obtained the full contract balance owed to the subcontractor.  The full arbitration award was paid shortly thereafter.

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Jordan R. Pavlus was recently appointed as an arbitrator of FINRA disputes.  FINRA is a not-for-profit organization authorized by Congress to protect America’s investors by making sure the broker-dealer industry operates fairly and honestly.  Disputes among investors and broker-dealers may be resolved through the FINRA arbitration process.

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Gregory P. Bazan recently obtained a decision from the Fourth Department Appellate Division affirming a motion for summary judgment.  The Supreme Court granted the motion for summary judgment on the basis that the contractor had not followed the contractual claims procedure, which was a condition precedent for commencing the lawsuit.  The decision can be found at Orchard Earth and Pipe Corporation v. Concrete Slipform, Inc., 149 A.D.3d 1551 (4th Dept. 2017).

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