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MY FAVORITE EMAILS by Leonard J. Catanzaro, Esq.

In my nearly 20 years as a construction litigator, I have learned that in addition to results, clients want to see effort on the part of their lawyer to vigorously advocate for their interests.  My clients feel taken care of because I constantly inform them as to what steps are being taken and need to be taken to recover their money. In other words, there is always action.

There is no better feeling than helping my clients recover their money for the work they did.  I firmly believe that when you do the work you should be paid, and I have dedicated my practice to that.

These are some emails I received last week that made my day:

"FYI: We just received full payment.  Funds deposited."

- Manhattan Condominium

"Len, we just got paid in full, please remove the mechanic's lien you filed for us."

- Bronx Residential Job

"Please go ahead with the Satisfaction of Lien, they are paying us."

- Roosevelt Field Mall

"Please call Chris, they worked out a deal and he wants to take the lien off."

- Manhattan Commercial Project

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3 WAYS CONTRACTORS CAN KEEP GOOD RECORDS by Leonard J. Catanzaro, Esq.

WHEN a client comes to me, I listen to what she or he has to say and also look at the documents to assess the strengths and weaknesses of the case.  Some clients tell me their documents were lost in an office move, destroyed in a flood, or thrown out.  They tell me of verbal agreements and broken promises to pay for both base contract and change order work.  These obstacles may not be insurmountable (we can look at prior conduct and history), but think about how much easier and stronger your case would be if you had good habits in maintaining your business records.  It is important to note that documents kept in the regular course of business are admissible at trial, while documents prepared in anticipation of litigation are not.  Here are 3 ways contractors can keep good records:

DAILY LOG OR JOURNAL

1.  If you did not write it down it did not happen.  Keep a log or journal of each day's activity at the job site.  Try to have change orders signed by the owner, but if you cannot, put an entry in your daily log or journal that you discussed the change order with the owner, and he or she verbally approved the work to be done and the price of the change order.  There is case law that says the conduct of the parties can be looked at to determine whether the requirement that change orders be in writing has been waived.

FOLLOW UP VERBAL CONVERSATIONS IN WRITING

2.  If you have a verbal conversation in person, or by telephone, send a follow up letter, fax, or email memorializing the conversation. For example,

"As we discussed via telephone on x date, you agreed to pay an additional $10,000.00 regarding the excavation work since the area has been doubled in size to 5000 square feet.  If you disagree with the above, please contact me immediately."

If they never disputed the letter prior to the lawsuit, it is hard for them to dispute it at trial.

ORGANIZE YOUR DOCUMENTS AND KEEP THEM IN A SAFE PLACE

3. Keep your records (originals and a copy) in a safe, dry place, and have them backed up, on disk and store hard copies in another office or offsite.  Keep copies of contracts, estimates, proposals, bid documents, change orders, correspondence, checks, contracts with your subcontractors, invoices and payments to your subcontractors and materials suppliers, receipts, bank and credit card records, payroll, drawings, blue prints, schematics, permits, inspections, sign offs, logs, journals, correspondence, emails, letters, faxes, photographs, videos, recordings, etc.  Make it a routine to keep the above documents in a safe and easily accessible location, and train your staff accordingly.  These documents will be needed in the event of a lawsuit. 

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Why mechanic's liens work by Leonard J. Catanzaro, Esq.

Mechanic's liens work because they attach to the property where you did the work.  The mechanic's lien allows you to force the sale of the property and get paid from the proceeds of the sale.  This is called a lien foreclosure action and a lis pendens is filed against the property. 

Mechanic's lien are inexpensive.  My law firm charges $385 to file a mechanic's lien in the City of New York, and $445 in Nassau County due to the $90 filing fee.  Just go to my website QuickLien.com and click on the type of job you want to lien, "commercial" "residential" "city" or "state".  File out the simple lien questionnaire and hit "submit".  You will receive the finished lien ready for your review, signature, and notarization.  The owner and general contractor, if applicable, are served with the mechanic's lien.  You will receive a copy of the lien stamped by the court.  The lien is valid for 1 year from the date of filing and can be renewed for an additional year if a commercial property.  If a 1 family house, condo, or co-op the lien can be extended by court order.  The lien can be extended by court order.  I suggest commencing a lien foreclosure action and filing a lis pendens which keeps the lien in effect for 3 years from the date of filing of the lis pendens.  A lis pendens is also called a Notice of Pendency.

When you start a lien foreclosure lawsuit, the lawsuit will contain various causes of action in addition to foreclosing the lien.  You must prove that the lien is valid in court, and that the owner owes you, or the general contractor for the work you did. 

What does bonding the lien mean?  Your mechanic's lien is filed with the county clerk where you did the work.  Bonding means the owner, or the general contractor, goes to a bonding company and either pays a premium or puts up collateral in an amount 110% the lien amount.  The bond is then filed with the county clerk and literally replaces the lien.  The lien is no longer on the property as it is discharged by the bond.  However, you are still protected because in the event you obtain a judgment of foreclosure in court instead of selling the property, the bonding company pays you.

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THE 5 FASTEST WAYS FOR CONTRACTORS TO GET PAID What you must know if the owner, contractor, or the city owes you money.

       LAW OFFICES L E O N A R D  J.  C A T A N Z A R O

    SUITE 2F     555 LENOX AVENUE NEW YORK, N.Y. 10037 (212) 226-1234

1.  Mechanic's liens are inexpensive and hard-hitting.  Liens attach to the property where you did the work and all parties (the owner and general contractor) are notified that you have not been paid.  My law firm has recovered millions of dollars for contractors by filing mechanic's liens.  File you quicklien at quicklien.com or call Leonard J. Catanzaro, Esq for immediate assistance at (212) 226-1234.

2.  Lien foreclosure is available only after you have file a mechanic's lien.  Foreclosing on the lien means starting a lawsuit and filing a lis pendens to force the sale of the property.  Although most cases settle, you get paid from the proceeds of the sale.  In the case of a public improvement project, you are trying to obtain the monies financing the project.  You cannot file a lien on public property, but you can restraining the monies financing the public project in an amount one and one-half the lien amount.

3.  Arbitration is usually conducted under the rules of the American Arbitration Association.  if you have an arbitration clause in your contract you are obligated to arbitrate the matter, unless the parties agree to court instead.  An arbitrator's decision is usually not appealable.

4.  Payment Bonds are required to be obtained by prime contractors on public improvement projects (city, state, and federal) to make sure the subcontractors get paid.  There are extremely strict time limits involved and you should immediately hire an attorney to protect your interests under the payment bond.  Federal jobs are handles under the Federal Miller Act.

5.  Litigation means starting a lawsuit in court.  An action is commenced by filing an index number and then serving the parties by a process server.  A lien foreclosure is a litigation, but you can also sue even if you do not have a mechanic's lien. You can sue for breach of contract, violation of constructive trust under New York Lien Law, quantum meruit, account stated, attorney's fees in some situations, lost profit, delay claims, interest, etc.  Most cases settle before trial, but the next step must constantly be taken to aggressively prosecute your case.

Please contact your attorney immediately if you are concerned about the timeliness of filing a mechanic's lien, lien foreclosure and lis pendens, or payment bond claim.

Leonard J. Catanzaro, Attorney at Law

(212) 226-1234

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Anatomy of a Lawsuit by Leonard J. Catanzaro, Esq.

1.  Summons and Complaint:  A lawsuit is deemed commenced upon the purchase of an index number with the court; within 120 days of filing, the defendants must be served by a process server and the affidavits of service filed with the court.

2.  Answer and Counterclaim: After the defendant is served with the summons and complaint, the defendant must serve an answer within 20-30 days depending on whether they were personally served.  The answer frequently contains a Counterclaim, which must be responded to by the plaintiff.

3.  Request for Judicial Intervention and Request for Preliminary Conference:  Once the Answer is served, "issue has been joined" and the next step is to file a Request for Judicial Intervention and Request for Preliminary Conference.  This assigns a judge to the case, and results in a PC date.

4.  Preliminary Conference:  This is typically the first court date where attorneys appear in court to enter into a PC order scheduling the exchange of documents in the case, such as contracts, change orders, payments, correspondence, etc., and also scheduling the depositions of all parties.

5.  Discovery Demands: Each party serves discovery demands called Demand for Bill of Particulars, or Interrogatories, and Notice for Discovery and Inspection.  The Demand for BOP asks questions about the claim, and NDI requests copies of documents.

6.  Depositions:  Also known as an EBT "examination before trial" usually occurs after paper discovery has been exchanged.  The attorneys take the testimony of the adverse party before a court reporter who makes a transcript of the deposition.  This deposition transcript can be used at trial to impeach the credibility of the adverse party.  It is also a way to lock in the adverse party's testimony to prepare for trial and avoid surprises.

7.  Note of Issue:  Once discovery is complete the case is ready for trial.  Usually the plaintiff files a Note of Issue stating that all discovery is complete and the case is ready for trial.

8.  Trial:  A trial date is set and the parties come to court ready to present their respective evidence and witnesses.  Sometimes cases settle just before trial or during the trial itself.