Current Position
Bob Rubin, Construction Disputes Avoidance and Resolution

Work History
Special Counsel, McCarter & English, LLP, 2007-16; Of Counsel, Seyfarth Shaw LLP, 2006-07;
Partner, Postner & Rubin, 1980-05;
Partner/Associate, Max E. Greenberg, Trayman, Cantor, Reiss & Blasky, 1964-80

Experience
Over five decades exclusively in construction law, both transactional and litigation, counsel and advice, analyses of troubled projects, feasibility studies of proposed projects, development of programs for multi-project procurements, including disputes avoidance and alternative disputes resolution

Principally involved in the resolution of complex construction disputes ranging in value from $50,000 to $150 million through traditional litigation, arbitration, mediation and disputes review boards

Represented public and private owners, sureties, developers, construction managers, engineers and architects, insurers, prime contractors, subcontractors, and equipment and material suppliers. Projects include heavy and highway, commercial and industrial, residential, public works and marine construction including airports, highways, sewers/waterworks, tunnels, bridges, dams, power and chemical plants, high-rise office and residential buildings, zoo and aquarium, hospitals, schools, shopping centers, slurry walls, soils/geotechnical, structural steel erection, racetracks and breakwater. Disputes involve bid protests, collapses and failures, design and construction defects, default and termination, delay and disruption, changes and scope-of-work and differing site conditions.

Professional Licenses
Admitted to the Bar: New York, 1964; U.S. Supreme Court, 1970. Professional Engineer, New York, 1971

Professional Associations
American Bar Association; American Society of Civil Engineers (Fellow); American College of Construction Lawyers (Past President); College of Commercial Arbitrators (Fellow); The Moles; Dispute Resolution Board Foundation (Past President); ACE Mentor Program (Director); National Academy of Construction; International Mediation Institute (IMI) Certified Mediator

Education
Cornell University (BCE-1961); Columbia University (JD-1964)

New York Construction Law Manual Rubino

Rubin has extensive experience in the use of dispute review boards and other alternative dispute resolution techniques to resolve construction disputes. He is a member of the Construction Industry, Master Mediator, and Mega Project Arbitrator Panels of the. Between the plaintiff and the general contractor and/or warranties implied by law. §28-3-202 provides that all actions to recover damages for any deficiency in. The design, planning, supervision, observation of construction, or construction of an. Find 755 New York Construction Law Manual 2016 Edition 3rd Edition by & et al at over 30 bookstores. Buy, rent or sell.

Teaching
Adjunct Professor, Columbia University, faculties of both Law and Civil
Engineering, teaching interdisciplinary course on Construction Industry Law

Publications
Co-author, New York Construction Law Manual, 2014 Ed., Thomson/West;
Construction Claims: Prevention & Resolution, 3rd Ed., John Wiley & Sons, 1999;
New York Chapter of the State-by-State Guide to Architect, Engineer and Contractor Licensing, Aspen Law and Business, 1999 (Supp. 2014); Chapters on “The Mediator” and “Dispute Review Boards and Other Forms of Construction ADR,” Construction ADR, ABA Forum on the Construction Industry, 2014

Speaker, author and co-author of numerous professional journal articles and book
chapters related to construction law, surety law, professional liability, government
contracts and alternative dispute resolution

Awards and Honors
Recipient of the 2006 Chambers Award of Excellence in Construction Law; Recipient of the 2007 Cornerstone Award of the ABA Forum on the Construction
Industry; Recipient of the 2010 Al Mathews Award for Dispute Board Excellence of the Dispute Resolution Board Foundation

When the New York Prompt Payment Act (“PPA”) was first enacted (effective 1/14/2003), many
believed that it would have a major impact on the payment process in the construction industry. That
has not been the case. United States District Court Judge Jack Weinstein recognized the limited reach of
the PPA in his recent decision in Layout Inc. v. Heavy Metal Corp. (EDNY 16-CV 2531).

Plaintiff Layout Inc. (“Plaintiff”) provided surveys for two construction projects in Brooklyn. Defendants
Heavy Metal Corp. and East Coast Precast and Rigging, LLC (collectively “Defendants”) were steel
fabricators who utilized Plaintiff’s surveying services. Plaintiff billed for its services but was not paid.
Defendants claimed Plaintiff’s work was defective. Plaintiff sued to recover payment and Defendants
counterclaimed for their costs to correct Plaintiff’s work. Plaintiff moved for summary judgment on its
claim under the PPA as well as its negligence and breach of contract claim.

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Judge Weinstein began his analysis with a succinct summary of the relevant provisions of the PPA. In
order to provide for the “prompt payment” of contractors and subcontractors on private projects, the
PPA sets a “default standard” for when suppliers of labor and services should be paid (*4). Once a
business receives an invoice and supporting documentation, it has twelve business days to approve or
disapprove it, and it has thirty days to pay. If it decides not to approve an invoice in whole or in part, it
must issue a “written statement” describing the unapproved items.

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The PPA provides for three remedies for contractors or subcontractors who are not timely paid. If the
payment is delayed beyond the thirty day period, the contractor or subcontractor should receive
interest at one percent per month. Second, the contractor or subcontractor may suspend performance
subject to written notice. Third, the contractor or subcontractor may refer the matter to the American
Arbitration Association for an expedited arbitration (*5).

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Because it was only addressing the specific issues raised by the dispute before him, the Court did not
mention other salient provisions of the PPA. For example, the thirty day time frame mentioned by the
Court is not as clear-cut as one might assume. In fact, it is generally subject to the owner’s receipt of
monies from its construction lender (or, in the case of a subcontractor payment, the contractor’s receipt
of payment from the owner) (GBL Section 756-d). This raises a question of whether the PPA is
inconsistent with the New York Court of Appeals decision in West-Fair Elec. Contractors v. Aetna Cas. &
Sur. Co., 87 N.Y.2d 148, 638 N.Y.S.2d 394 (1995) which held that “pay when paid” provisions in
construction contracts violate the New York Lien Law.

In any event, Judge Weinstein found that New York state courts had greatly limited the effect of the
language of the PPA. He cited two New York appellate opinions which both held that, even when a
defendant missed the twelve day deadline in the statute, the defendant could present evidence to a trial
of fact which would justify the application of deductions to the invoices in question. See Precast
Restoration Services, LLC v. Global Precast, Inc. 131 A.D.3d 873, 17 N.Y.S.3d 393, 394 (1st Dep’t 2015);
Donniger Construction, Inc., 113 A.D.3d 724, 979 N.Y.S.2d 133, 135 (2d Dep’t 2014).

Applying that standard to the facts presented, the Court denied Plaintiff’s summary judgment motion.
Judge Weinstein followed the standard set forth in Precast Restoration and Donniger, and found that
the Defendants were not barred from asserting any defenses to Plaintiff’s claims, even if they failed to
timely disapprove payment. Thus, the seemingly strict language of the PPA would not be applied by the
Court to this matter. Presumably, based on its interpretation of the statue, the Court also sua sponte
dismissed Plaintiff’s claims based on the PPA.

Some of the remaining claims, which are not the subject of this posting, survived motion practice and
the Court directed a jury trial to commence on May 29. Prior to trial the parties entered
into a consent judgment in favor of Plaintiff.

Until courts are willing to apply a strict reading of the PPA, its impact on payment disputes between
parties in the construction industry will be less than anticipated when the PPA was first enacted.
Instead, the parties need to be vigilant in embracing their contractual and common law rights to
payment.