Flanagan Law Blog

There was a time when the definition of the parties involved in construction was fairly consistent.  The roles remained somewhat within traditional bounds.  A general contractor took on a project for an owner.  He/she was bound to follow the design – plans and specifications of an architect and engineer who had been retained by the owner.  The job was to “buy out” some or all of the work from other contractors – who would be loosely denominated “subcontractors”.  Price/purchase materials from “suppliers” either directly or through the subcontractors.  The focus was on holding labor and material costs to what was estimated.  A primary way of ensuring profit was keeping firm control of project scope – vs. extra work – and to closely maintain the project schedule.

With the introduction of first, construction managers, and then design-build approaches, the role of the general contractor changed. Although the notion of contractual privity remained the rule of thumb, there was some erosion where Courts saw a need.  And while scope was still somewhat sacrosanct, recovery for the time impact of acts or omissions of others, i.e., design changes, was severely limited, while liability, i.e., for liquidated damages, barely changed.

1 – Common Law Contract

As a general rule, a party was not liable in contract to anyone who is not in privity; a subcontractor it retains; a worker it employs; a supplier it has a direct order with.  This enabled the general contractor to be aware of the costs it is incurring.  Tort liability for the general contractor, as well as the design professional, was harder to predict – but generally could be insured.

With power comes responsibility.  It should not have been a surprise that many tried to look to the general contractor to cure all ills.  Yet the traditional limits were mostly observed.  Now there are a number of developments of which a contractor must be cognizant – they can be traps for the unwary.

2 – Statutory Expansion

In 2021 the New York State legislature enacted a statute that passes liability for the payment of workers on a project up to the general contractor. This is enforceable whether the workers are employed by the general contractor or subcontractor.

§ 198-e. Construction industry wage theft.

1. A contractor making or taking a construction contract shall be liable for any debt resulting from an action under section one hundred ninety-eight of this article, owed to an employee or third party on the employee’s behalf, incurred by a subcontractor at any tier acting under, by, or for the contractor or its subcontractors for the employee’s performance of labor. The provisions of this section shall not be deemed to limit the liability of a subcontractor under section one hundred ninety-eight of this article.

No one should seriously dispute the right of a worker to be paid for a day’s work.  And, no doubt we all have seen instances of the undercapitalized or dishonest subcontractor leaving workers “holding the bag”.  Yet implementation of this new legislation does present problems.  It has been suggested that the general contractor merely make sure that the workers are paid, i.e., by joint checks to the subcontractor and the worker.  Easy enough, not really?  We have a company which did not hire the worker, did not supervise him/her, and may not even know the worker, responsible for payment.  There will still be opportunities for fraud, although maybe less than before?  Also, our experience suggests that many subcontractors will find these efforts overly intrusive and balk at full cooperation.

We have yet to see any reported cases involving this new law but – given the penchant for controversy – we should see them soon.

3 – Third Party Beneficiary

The new statutory approach does not come as a complete surprise to many of us in the construction/labor law field.  The issue of payment to workers was probably always there – but it has burgeoned.  With a reduction in union work and more open shop work there seems to have been an epidemic of “wage theft”.  The use of subcontractors to perform prevailing wage work increased as did the frequency that such smaller companies were formed – and then disappeared.

Public owners have tightened up the rules on prevailing wage over the years.  Enforcement can come both on the administrative side or through a plenary lawsuit.  

Some claim union wages are much too high – imposition of high wage rates only cuts into profit.  That view might apply to some lower killed workers – but in the end you probably get what you pay for.  And to have a cadre of skilled workers available in the New York Metropolitan area is essential.  With living costs high, wages must keep pace.

With the new statute discussed above, many former cases may be subsumed into the statutory scheme.  In the meantime, we have courts straining to fulfill salutary goals by stretching basic legal principles, i.e., third party beneficiary.  The theory is that the worker is a beneficiary of the public contract subject to prevailing wage law.  See, Solouk v. European Copper Specialties, Inc., 2019 U.S. Dist. LEXIS 81267 (S.D.N.Y 2019).  However, to stretch long accepted principles of intended versus incidental beneficiary too far may not come without consequences.

4 – Joint Employer

In Labor Law there has long been instances where liability for payment to workers has extended to others beyond the direct employer.  See, for example, Navar v. Walsh Constr. Co. II, LLC, 2019 U.S. Dist. LEXIS 225447 (S.D.N.Y. 2019); Zheng v. Liberty Apparel Company, Inc., 617 F.3d 182. 2010 U.S. App. LEXIS 16478 (2d Cir. 2010).  One can almost feel a court’s anger when a company simply stiffs its workers – and the solution is to hold the individual owners liable.  In New York, a similar result can be warranted under Business Corporation Law § 630.

§ 630. Liability of shareholders for wages due to laborers, servants or employees

1. The ten largest shareholders, as determined by the fair value of their beneficial interest as of the beginning of the period during which the unpaid services referred to in this section are performed, of every domestic corporation or of any foreign corporation, when the unpaid services were performed in the state, no shares of which are listed on a national securities exchange or regularly quoted in an over-the-counter market by one or more members of a national or an affiliated securities association, shall jointly and severally be personally liable for all debts, wages or salaries due and owing to any of its laborers, servants or employees other than contractors, for services performed by them for such corporation.

See, also, Kule-Rubin v. Bahari Group Ltd., 2012 U.S. Dist. LEXIS 29000 S.D.N.Y. 2012).

5 – Erosion of Privity

A somewhat seminal event in New York jurisprudence was the Court of Appeals decision in Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 174 N.E. 441, 1931 N.Y. LEXIS 660 (1931).  With that case a traditional barrier of lack of privity broke down and led to liability for an accountant.  This principle has been extended over time to other professionals. Ossining Union Free School Dist. v. Anderson, 73 N.Y.2d 417 (1989).  What this has meant is that an architect or an engineer cannot feel comfortable with the notion that its only exposure is to its client.  This concept has been frequently used in construction litigation -although it has rarely succeeded.  Where workmanship is shoddy, the contractor may only have to fear his owner and will have various contract protections in place; yet, the design professional may not have such luxury.  Moreover, where there has been a finding of tort liability – personal injury or property damage – both may find themselves in the gunsight.

We have struggled with harmonizing these principles especially in the residential construction field, i.e., cooperatives and condominiums.  The contracts may all be with a Sponsor that has long since disappeared – before the building settles, walls crack, equipment fails, etc.  A true dilemma calling for digging and some creative lawyering.  JSignal LLC v. CCM Prop. Mgt. LLC, 2020 NY Slip Op 33340[U] [Sup.Ct. New York County 2020]; Brail v. Ogawa Depardon Architects, 2020 N.Y. Misc. LEXIS 9888, 2020 NY Slip Op 33584(U)(Sup.Ct. New York County 2020); CREF 546 W. 44th St., LLC v Hudson Meridian Constr. Group, LLC, 69 Misc. 3d 747, 128 N.Y.S.3d 829, 2020 N.Y. Misc. LEXIS 3326, 2020 NY Slip Op 20172 (Sup.Ct. New York County 2020).

6 – Registration

In an effort to further control the construction process there is very recent legislation requiring registration in order to participate in public work. Labor Law § 220-i now provides:

2.

a. Prior to submitting a bid on a contract for public work or commencing work on a covered project under private contract, a contractor shall register in writing with the bureau on a form provided by the commissioner. The form shall require the following information:

i. The name, principal business address and telephone number of the contractor.

ii. Whether the contractor is a person, partnership, association, joint stock company, trust, corporation, or other form of business entity.

iii. The name and address of each person with a financial interest in the contractor and the percentage interest, except that if the contractor is a publicly-traded corporation, the contractor shall supply the names and addresses of the corporation’s officers.

iv. The contractor’s tax identification number, unemployment insurance registration number, and workers’ compensation board employee number.

v. Whether the contractor has any outstanding wage assessments against it, pursuant to this article.

vi. Whether the contractor has been debarred under New York or federal law within the last ten years.

vii. Whether the contractor has been debarred pursuant to the laws of any other state within the last ten years.

viii. Whether the contractor has been finally determined by the appropriate authority to have violated any labor laws or employment tax laws including, but not limited to, the requirement to have workers’ compensation coverage, payment of workers’ compensation premiums, deduction and payment of income taxes, payment of unemployment insurance contributions or payment of prevailing wage.

ix. Whether the contractor has been finally determined by the appropriate authority to have violated any laws establishing workplace safety standards including the federal Occupational Safety and Health Act.

x. Whether or not the contractor is associated, or a signatory to, an apprenticeship program under article twenty-three of this chapter. If so, the apprenticeship program shall be provided by the contractor.

xi. Whether or not the contractor is a minority or women-owned business enterprise pursuant to the provisions of article fifteen-A of the executive law.

b. At the time of registration, and upon request, the contractor shall submit to the commissioner documentation demonstrating that the contractor has workers’ compensation insurance coverage for all workers as required by law, including any and all declarations and information pages related to such policy which shall be electronically accessible and searchable to the public, provided however, that in no event shall a worker’s name or other personal identifying information be included in such database. This information shall be made readily available to the public by the bureau within forty-eight hours of the initial public request.

Much of the statute refers to information which is already publically available and used by owners.  It may be argued that a contractor’s provision of such details is likely to be more accurate and descriptive where needed.  At the same time, some information may be more private, i.e., “person with a financial interest”, or problematical, apprenticeship programs.  

7 – Criminal Exposure

Finally for this Blog, we have the Manhattan District Attorney, Alvin Bragg, announcing a new initiative to protect the rights of workers, especially on construction projects.  This initiative calls for enhanced charges and penalties against corporations and individuals committing wage theft. This may simply be additional pandering to an election base, considering that the New York City Comptroller, New York State Department of Labor and U.S. Department of Labor, already fully occupy the space.  There have been few criminal prosecutions in this area which might more appropriately be evaluated as “white collar” crime or civil violations.

Disclaimer: This Blog is offered to raise and discuss issues of general interest in the field.  It should not be construed as legal advice or the formation of an attorney-client relationship. Do not rely solely on this information on making decisions for your firm. Prior results do not guarantee a similar outcome.

References:

1. This role has sometimes been labelled “Prime Contractor”.
2.  This term has in our experience been too loosely used to not only cover a true agent of an owner but also to include at least some aspects of being a traditional general contractor.
3. Lawyers struggled to find the logic behind such cases as Ossining Union Free School Dist. v. Anderson, 73 N.Y.2d 417 (1989) in comparison with Morse/Diesel, Inc. v. Trinity Industries, Inc., 859 F.2d 242 (2d Cir. 1988).
4.  Labor Law § 198-e.
5.  Kickback schemes were once in vogue.  We have no evidence to suggest they no longer exist.
6.  This term has emotional impact – though the conduct is more “cheating” than outright pickpocketing.

Perhaps the most important issue facing those in the construction industry is payment.  Complete payment.  Timely payment.[i]  Projects cannot proceed apace without payment.  At the same time, owners and general contractors must be careful not to overpay – which creates a disincentive for proper completion.

The industry has long utilized standard firm contracts and subcontracts.  Also, it has accepted procedures for payment requests in the form of certificates for payment and requisition forms.  The process of necessity needs clear definition from the outset.  When can the contractor seek payment?  How does it do so?  How long does the other party have to make payment?[ii]

Under the standard percentage of completion approach, the paying party must assess the work.  The process does not differ greatly for unit price work where there are often necessary measurements or “time and material” work where detailed submissions are made.

THE REQUEST

The propriety of a request can sometimes run into scope questions.  What is contract work?  What is arguably outside the scope, additional or extra work, to raise the need for a possible contract modification (a “change order”)?  Moreover, since “time is money” when does the project schedule come into play for payment?[iii]

THE AGREEMENT

The foundation for the payment claim is the agreement for the work – perhaps a general contract between an owner and contractor.  The subcontractor may find itself layered under that agreement by a subcontract with different terms and/or incorporate the terms of the general contract.  Contracts can change.  A modification to the contract might be framed as a proposed “change order”.

THE DISPUTE

The typical payment dispute has a contractor squaring off against the owner and seeking payment believed due under the contract.  This is sometimes framed as a “collection case” – which is actually a characterization more appropriate to claims of vendors/suppliers.  The case be framed as a breach of contract even where the only failing seems to be payment.[iv]  Moreover, the loss can go beyond just a balance and it can be hard to delineate between collections and damage claims.[v]  Any disagreements or disputes must be properly preserved.[vi] In the end we have “retainage”, simply a carrot to ensure completion as well as to protect against unforeseen issues.[vii]

Of course the contractor must perform the work to become entitled to payment.[viii]

PRESSING FOR PAYMENT.

The contractor must properly seek payment. Payment may be sought based upon the agreement and sometimes on invoices, referred to as “account stated.”  Other theories are quantum meruit (reasonable value) and unjust enrichment.[ix]

Security can be obtained by filing a lien or accessing a payment bond.  Many of the same elements remain necessary and new ones come into play.

The party seeking payment may seek to recover on a mechanic’s lien or against a bond.[x]  It may also identify targets with whom it has no contractual relationship, referred to as “privity.”  A key is not to frame a case entirely against one who is “judgment proof.”

FORFEITING POTENTIAL PAYMENT

The contractor must be careful not to forfeit a right to payment.  This can occur by letting too much time pass or by affirmatively waiving rights, i.e., a lien waiver.  The scope of such a document is usually for work performed to a particular date.  The owner at least wishes to put contract time periods behind it on financing.  There are many traps for the unwary which can be understandable protective provisions for those seeking to keep control of cost.[xi]

Cash flow can be critical to a contractor remaining profitable and in business.  Recouping unanticipated cost can be justified in many instances notice is given and appropriate records are kept.  The construction industry is benefitted by those who know their rights and obligations.

[i] See, New York General Business Law, §756 et seq. the “Prompt Payment Act”.  This legislation has always seemed to promise much more than it delivers. Matter of Capital Siding & Constr., LLC (Alltek Energy Sys., Inc.), 138 A.D.3d 1265, 31 N.Y.S.3d 230, 2016 N.Y. App. Div. LEXIS 2759, 2016 NY Slip Op 02878 (3d Dept. 2016).

[ii]  Courts cannot consider invoices that cannot be proven to have been received. NYU Hosps. Ctr. v. HRH Constr. LLC (In re HRH Constr. LLC), 2011 Bankr. LEXIS 2973, 2011 WL 3359576 (S.D.N.Y. 2011). Nor can they consider billings that neither party can document.  Richard R. Brown Assoc. P.C. v Wildenstein, 2017 N.Y. Misc. LEXIS 2865, 2017 NY Slip Op 31584(U) (Sup. Ct. New York Co. 2017).  See also, Katselnik & Katselnik Group, Inc. v. 313-315 W. 125th St., LLC, 2013 N.Y. Misc. LEXIS 5348, 2013 NY Slip Op 32932(U) (Sup.Ct. New York Co. 2013).

[iii] Blue Heron Constr. Co., LLC v. Village of Nunda, 63 A.D.3d 1694, 881 N.Y.S.2d 573, 2009 N.Y. App. Div. LEXIS 4717, 2009 NY Slip Op 4817 (4th Dept. 2009); J.R. Stevenson Corp. v. County of Westchester, 113 A.D.2d 918, 493 N.Y.S.2d 819 (2d Dept. 1985).

[iv] U.W. Marx, Inc. v. Koko Contr., Inc., 124 A.D.3d 1121, 2 N.Y.S.3d 276 (3d Dept. 2015).  Prior breaches can limit a contracting party’s rights.

[v] The types of issues that arise are:

Failing to comply with Notice and Cure provisions;

Improperly preventing another from completing its work in a reasonable fashion;

Delaying and inhibiting contractor’s work; see, WDF Inc. v Trustees of Columbia Univ. in the City of N.Y., 2017 N.Y. App. Div. LEXIS 8863, 2017 NY Slip Op 08744 (1st Dept. 2017); Corinno Civetta Constr. Corp. v. New York, 67 N.Y.2d 297, 493 N.E.2d 905, 502 N.Y.S.2d 681, 1986 N.Y. LEXIS 18058 (1989);

Denying access and completion by others; and

Design errors. Grow Constr. Corp. v. State, 56 A.D.2d 95, 391 N.Y.S.2d 726 (3d Dept. 1977).

[vi] Issues can include overbilling, backcharges, claims of defective work, and liquidated damages.  Another common defense is the existence of a “Pay when Paid” provision.  Polar Bear Mech., Inc. v. Walison Corp., 56 Misc. 3d 129(A), 63 N.Y.S.3d 307, 2017 N.Y. Misc. LEXIS 2471, 2017 NY Slip Op 50848(U) (2d Dept. App. Term 2017); Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 N.Y.3d 624, 859 N.E.2d 498, 825 N.Y.S.2d 692, 2006 N.Y. LEXIS 3565, 2006 NY Slip Op 8632 (2006); Superior Steel, Inc. v. Ascent at Roebling’s Bridge, LLC, 2017 Ky. LEXIS 511, 2017 WL 6380218 (Sup.Ct. Kentucky 2017).

[vii] New York General Business Law, §756-c.

[viii] R.P. Brennan Gen. Contrs. & Bldrs., Inc. v. Bovis Lend Lease LMB Inc., 15 Misc.3d 1134(A), 841 N.Y.S.2d 823, 2007 N.Y. Misc. LEXIS 3388, 2007 NY Slip Op 50972(U) (Sup.Ct. New York Co. 2007).

[ix] Vertical Progression, Inc. v. Canyon Johnson Urban Funds, 126 A.D.3d 784, 5 N.Y.S.3d 470 (2d Dept. 2015); Malta Props. 1, LLC v. Town of Malta, 143 A.D.3d 1142, 39 N.Y.S.3d 544, 2016 N.Y. App. Div. LEXIS 6789, 2016 NY Slip Op 06935 (3d Dept. 2016); Growbright Enters., Inc. v. Barski, 2014 N.Y. Misc. LEXIS 3099, 2014 NY Slip Op 31805(U) (Sup. Ct. New York Co. 2014).

[x]  TW Installations LLC v WC28 Realty LLC, 2017 N.Y. Misc. LEXIS 4016, 2017 NY Slip Op 32226(U) (Sup. Ct. New York Co. 2017); Bergassi Group v. Consolidated Edison Co. of N.Y., Inc., 2013 N.Y. Misc. LEXIS 768 (Sup. Ct. Westchester Co. 2013).

[xi] Standard notice provisions include time to seek payment for extra work, additional contract time, etc.

Construction projects invariably have disputes/problems.  That is in the nature of the process.  It can be a wonder that anything ever gets built at all.  The ability of the parties to a project to work through the day to day issues confirms the strength of our domestic construction industry.

When it appears that there may be a looming “default” allegation by one party, it is important to first limit the emotion involved.  Take a deep breath. Consult more dispassionate individuals in management – or counsel.  Then follow deliberate steps.

Step 1 – Are you considering declaring another party in “default?”  Do you think your company may be declared in default?

Begin with the notion that “default” is generally just an allegation by one party against another.  It can be withdrawn or may just disappear.  For the allegation to proceed further it generally must be deemed to be “material.”  We have often seen such allegations made just to wake up another party – merely to get attention.

Issues in construction can sound simple, i.e., “you are behind schedule” or they can be vague, i.e., “you have failed to satisfy your obligations under the contract”.  However, there is usually a run up to any allegation.  Review the history and facts.  We once were successful in defeating the default of a contractor for late performance by showing the owner it had simply forgotten its prior grant of an extension of time!

Consider the terms of the construction contract or subcontract.  We often find that the contractor or owner has never read the contract.  A subcontractor can be told it is to honor provisions of a contract it is not a party to and has never seen.  Review of contract language is particularly important in default situations.  Do not assume you know the timing and nature of communications required – either by you or to hold you in default.  Some private owners write their own contracts, as do large general contractors and construction managers.   AIA forms are in common use, i.e., AIA A201.  There are many different contract forms and each provides not only scope and price – but also provisions for default/termination.  Review and compliance is of paramount importance.[i]

Step 2 – Focus on the notice provisions for various events.

Most are aware of at least some of the notice provisions used in the construction industry.  Notice is usually needed for possible work outside the original scope, additional work, extra work, change orders, even when unit price work exceeds contract estimates.  Notice is important for interferences, delays, acceleration of work – whether the only remedy is an extension of time or when seeking additional compensation.

Some are aware that particularly in public work there is a requirement for filing/service of a Notice of Claim lest one be cut off from any future rights concerning an event.

When default/termination is the issue, another notice or even set of notices comes into play.  Do not assume you know what the contract says.  Terms are constantly changing and there are as many different default/termination provisions as there are projects.  We have seen contractors ignore notice letters and rue their omission.  And, we have seen owners and general contractors misinterpret notice provisions they drafted and included for their own benefit!  Wrongful termination, procedural or substantive, can equal a breach of contract by a party rightfully aggrieved by acts or omissions of another.[ii]

Step 3 – Proper issuance of the “Declaration of Default”.

Start by being confident that the allegation made is a material one.  Then look carefully at the contract or specifications so that the allegation is clear and as detailed as is warranted and required.

If there are other project parties involved, i.e., an architect or engineer, make sure they are in the loop.  That may be required!

Finally, if there is a performance bond review its provisions.  Although such bonds generally incorporate language from the construction contract, there also may be specific language regarding notice to and rights of the surety.  Moreover, bonding companies can be helpful in mediating disputes or in promptly addressing your project needs.

Step 4 – The forum for resolution.

The parties may later need to find the proper forum for resolution.  Courts tend to be stricter than others on contract language.  You do not wish to find out later that due to an oversight, i.e., lack of involvement by the architect, or confusion, i.e., notice to the general contractor but not the bonding company, rights have been partially or completely forfeited.  You may prefer to avoid a split forum.

Dispute Resolution now comes in different flavors, litigation [lawsuit], alternate dispute resolution (ADR), i.e., arbitration or mediation, or the time-honored approach of sitting down and talking.

First Warning: In all instances consider privity.  A contractor who is annoyed with the architect or engineer may have no direct rights.  In multi-layer projects a large subcontractor may have no way to reach the owner or construction manager.

Second Warning: The distinction between “default” and “termination” must be considered.  A default can often be worked out.  If you are at “termination”, time may have already run!

Third Warning: The distinction between a “suspension” and a “termination” must be considered.  We have seen owners take advantage of “time out” provisions providing for a suspension of work – especially when the design team needs a chance to re-evaluate.

Fourth Warning: The distinction between a “termination for cause” and a “termination for convenience” may come into play.

It has become more common for a party to issue a termination that may be unwarranted and even very unspecific.  Many contracts now provide that the termination can become one “for convenience” at the option of the declaring party.

Disclaimer: This Blog should not be construed as legal advice or the formation of an attorney-client relationship. Do not rely solely on this information on making decisions for your firm. Prior results do not guarantee a similar outcome.

[i] The law on conditions precedent to termination is well settled.  In Mike Bldg. & Contr., Inc. v Just Homes, LLC, 27 Misc. 3d 833, 901 N.Y.S.2d 458, 2010 N.Y. Misc. LEXIS 241, 2010 NY Slip Op 2004, 243 N.Y.L.J. 41 (Sup.Ct. Kings Co. 2010), the Court repeated the well accepted rule. “Where a contract provides that a party must fulfill specific conditions precedent before it can terminate the agreement, those conditions are enforced as written and the party must comply with them” citing Gulf Ins. Co. v. Fidelity & Deposit Co. of Md., 16 Misc. 3d 1116[A], 847 N.Y.S.2d 896, 2007 NY Slip Op 51440[U] (Sup. Ct. NY Co. 2007); A.S. Rampell, Inc. v. Hyster Co., 3 N.Y.2d 369, 381-382, 144 N.E.2d 371, 165 N.Y.S.2d 475 (1957). See also, Paragon Restoration Group, Inc. v. Cambridge Sq. Condominiums, 14 Misc. 3d 1236[A], 836 N.Y.S.2d 501, 2006 NY Slip Op 52579[U] (Sup. Ct. Erie Co. 2006), affd in part, mod in part, 42 A.D.3d 905, 839 N.Y.S.2d 658 (4th Dept. 2007) (owner breached article 14.2.2 of a standard AIA construction contract because the appropriate certification, notice and time to cure were conditions precedent to owner’s right to terminate for cause, which it failed to fulfill).

[ii] See, e.g., General Supply & Constr. Co. v. Goelet, 241 N.Y. 28, 148 N.E. 778 (1925); MCK Bldg. Assocs. v. St. Lawrence Univ., 301 A.D.2d 726, 754 N.Y.S.2d 397, 2003 N.Y. App. Div. LEXIS 8 (3d Dept. 2003);  Sheraton Operating Corp. v. Castillo Grand, LLC, 34 Misc. 3d 1207(A), 943 N.Y.S.2d 794, 2011 N.Y. Misc. LEXIS 6423, 2011 NY Slip Op 52438(U) (Sup.Ct. Westchester Co. 2011).