Matters

Private Club – MTA East Side Access Construction Issues

Represented a private club in its negotiations with the Metropolitan Transportation Authority on a mitigation plan to address concerns related to the impact of the MTA's $10.2 billion East Side Access project on the organization's landmark designated clubhouse.

European Insurer – Customized Political Risk Coverage

Representation of a major European insurer in designing and drafting an insurance policy covering political risks of an insured's non-European operations (for example, forced abandonment of a foreign country due to a governmental evacuation order). We drafted the policy to address the unique risks facing the insured, such as the potential loss of business income due to the cessation of the insured's operations of a railway in Africa. We also designed it to combine other risks such as pollution liability and coverage for the insured's construction projects.

Asphalt Contractor – Post 9/11 Reconstruction Bidding Dispute

Representation of an asphalt contractor in challenging the bidding procedure used by New York City and utility companies to award significant street reconstruction work near the World Trade Center site after the September 11th terrorist attacks. We obtained several temporary stays on the grounds that the bidding procedure violated public procurement laws. The city cancelled its invitation to bid and used a different procurement procedure.

Tribeca Construction and Mezzanine Financing

Represented a joint venture in obtaining complex construction and mezzanine loans for the development of several high-end residential luxury apartments in New York's Tribeca neighborhood.

General Contractor – Lien Foreclosure

Representation of a general contractor in a lien foreclosure action against the Metropolitan Transit Authority and the owner of 2 Broadway, New York, the MTA's headquarters. After a trial on the merits, the New York State Supreme Court awarded our client damages in excess of $1 million.

Developer – Discrimination Claim

Representation of a real estate developer and general contractor in an action by a minority subcontractor pursuing multi-million dollar discrimination and breach of contract claims. All claims were dismissed after a two week jury trial in the United States District Court for the Southern District of New York.

Joint Venture Partner – $40 Million Construction Agreement Dispute

Represented a joint venture in connection with disputes arising out of DEP construction agreements worth in excess of $40 million.

Developer – Construction Dispute

Representation of a property owner/developer.

Woolsulate – Lurgi Lentjes Arbitration

Representation of Woolsulate Corp., a New Jersey insulation contractor, in pursuing claims in mediation and arbitration against Lurgi Lentjes, a German energy company, to recover amounts due for services provided by Woolsulate at a PSE&G facility in Trenton, New Jersey.

New Yankee Stadium Financing and Development

Represented the New York Yankees in the issuance of $960 million of municipal tax-free and taxable bonds by the New York City Industrial Development Agency, which financed the lease and construction of the new Yankee Stadium. We also drafted and negotiated the lease agreement for the new stadium, as well as ancillary real estate agreements pertaining to parking lots and garages; construction, demolition and insurance, and public transportation. We were also integrally involved in navigating the Yankees through the lengthy federal, state and local governmental permit and approval process.

Condominium Board of Managers – Construction Defect Litigation

Representing the board of a Manhattan residential condominium tower in pursuing breach of contract claims against the condominium’s sponsor and building manager in connection with substantial material construction defects which will cost millions of dollars to repair.   

Sponsor – Brooklyn Waterfront Residential Tower Construction Defect Dispute

Advising the sponsor of a luxury condominium tower on Brooklyn’s waterfront on resolving pending litigation in which the board alleges construction defects.

Negotiated Settlement Resolving Construction Defect Dispute with Luxury Residential Tower’s Board

Represented the sponsor of a luxury Manhattan residential condominium tower in assessing and resolving damage claims asserted by the building’s board of managers in connection with alleged construction defects, violations of construction specifications, failure to comply with the offering plan, and breaches of various warranties. Negotiated a favorable settlement that resolved the dispute amicably and avoided potentially disruptive and costly litigation.

European Insurer – Chunnel Policy

Representation of a European insurer in structuring an aggregate declared risk capacity contract under which the insurer will provide insurance capacity to one of the world's leading engineering and construction companies for certain lines of insurance, including a cost overrun insurance program for the Channel Tunnel Rail Link.

NYSE Company – Internal Investigation

Representation of the Audit Committee of a New York Stock Exchange listed company to conduct an internal investigation of whistleblower claims brought by a former officer alleging that certain officers and directors had committed accounting fraud and violated the Sarbanes-Oxley Act.

Upper Eastside Co-op Owner – Construction Litigation Dispute with Former Contractor and Architect

Representing plaintiffs in a construction litigation dispute with their former contractor and architect involving claims for breach of contract, fraud and professional malpractice in connection with the multimillion dollar renovation of an Upper Eastside apartment.

Building Materials Manufacturer – Product Liability Disputes

Representing major manufacturer of commercial and residential roofing in multiple warranty claims.

Condominium Sponsor – Construction Defect Dispute with Construction Manager and Contractors

Representing the sponsor of a Brooklyn, NY condominium development in litigation with the project's construction manager and contractors arising from claims by the condominium's board of managers that work in accordance with an offering plan under which the condominium's units were sold was not adequately performed.

Developer – Successful Defense in Breach of Contract and Fraud Dispute

Herrick successfully defended Muss Development in the Appellate Division, First Department appeal of Princes Point LLC, et al. v. Muss Development LLC et al., a case involving the plaintiffs' breach of a $36 million contract to purchase Princes Point, a 23-acre waterfront parcel of land on the south shore of Staten Island, from Muss. The First Department unanimously confirmed Herrick's earlier Supreme Court, New York County victory for Muss, which entitles the real estate developer to retain the plaintiffs' approximately $4 million deposit plus other fees totaling nearly $1 million. In doing so, the court delved into an area where there was a dearth of case law in New York – namely, whether a prospective real estate purchaser anticipatorily breaches a sale contract by commencing an action against the seller for rescission before the closing date, and whether, in that event, the seller is required to show that it was ready, willing, and able to complete the sale. The court held that the plaintiff had anticipatorily breached the contract and that Muss is entitled to keep the deposit and other significant fees without having to show that it was ready, willing and able to close. Once there was a breach , there was no need to spend time and money preparing for a closing that was not going to happen.

Private School – Dispute with General Contractor

Representing a private school on Manhattan's Upper Eastside in litigation with former general contractor and subcontractors in a dispute claiming $15 million in damages related to a fire occurring during a significant renovation project due to the alleged negligence of the defendants.

Global Manufacturer of Building Products – Product Liability Litigation

Represented a global manufacturer of building products in litigation filed by an insurer, as subrogee of the purchaser of two roof systems. Plaintiff asserted claims for negligence, strict products liability and breach of express warranty relating to the alleged failure of those systems in a high wind event. Action was settled and dismissed on terms very favorable to our client.

Brazilian Investment Firm – Construction Dispute

Representing the US-based subsidiary of a Brazilian investment firm in a construction litigation dispute with the architect and design firm that formerly oversaw renovations at a 12-story midtown Manhattan office building owned by our client.

Construction Litigation – Dispute with General Contractor and Subcontractors

Representing a leading manufacturer and retailer of window coverings in litigation with the general contractor and various third-party defendant subcontractors in a dispute over payment for work done on a multimillion dollar building project in New Jersey.

Owner of Southampton Private Residence – Dispute with General Contractor

Representing the owner of a newly constructed private residence in Southampton, NY in an arbitration before the American Arbitration Association arising from a general contractor's claim for $1.4 million in damages for alleged non-payment of labor and materials. In addition to claims that the contractor's mismanagement caused significant damage to our client, we are also pursuing over $2 million in liquidated damages under the construction agreement between the parties.

Hotel Developer – Construction Litigation

Representation of New York City Hotel developer in construction litigation against general contractor.

Construction Management Company – Wrongful Termination

Representation of a construction management company in a dispute with NYU Hospitals Center regarding the termination of a multi-million dollar renovation contract. After a trial in Federal Bankruptcy Court, the court held in favor of our client on all counts, entitling them to payment of its outstanding requisitions and dismissal of all claims against them.

Real Estate Investment Management Companies – Construction Litigation

We defended a large industrial real estate investing entity and its investment management firm in a $90 million construction defect litigation with an industrial tenant in New Jersey. We succeeded in getting most of the plaintiff’s case dismissed on summary judgment, and then settled the rest of the dispute case before trial. The settlement included the plaintiff turning over escrowed back rent to our client and entering into a favorable lease extension.

Red Rock Services Trustee – Appellate Victory in Bankruptcy Litigation

Herrick secured an appellate victory for the chapter 7 trustee of bankrupt demolition subcontractor Red Rock Services, affirming a judgment of almost $1 million won in a bankruptcy adversary proceeding in the Eastern District of Pennsylvania. On behalf of the trustee, Herrick sued a general contractor for breach of its obligations under subcontracts with Red Rock in a pair of multimillion dollar construction projects in Baltimore and Boston. After eight days of trial, the trustee was awarded a judgment of almost $1 million, including attorneys' fees. Herrick defended the judgment on appeal to the district court, where it was affirmed, and went on to successfully defend the ruling on the defendant’s second appeal to the Third Circuit, which affirmed the judgments of the bankruptcy court and district court in their entirety.

Public Utility – Interference Work Dispute

Advising a major public utility company on a dispute and possible arbitration involving over 1,600 invoices for interference work related to a major public improvement project for the City of New York.