Contractor Defense and Fall-Protection Evidence: Giordano v. Tishman

Reviewed September 7, 2026.

In Giordano v. Tishman Construction Corp., 152 AD3d 470 (2017), the First Department held that factual disputes prevented summary judgment for either side on the Labor Law claims at issue.

A worker fell approximately 30 feet after stepping onto a scaffold brace that gave way. Although he wore a harness and double lanyard, the parties disputed whether adequate anchorage points were available and whether he could remain tied off throughout the work. Those questions also prevented resolution of the sole-proximate-cause argument as a matter of law.

Preserve usable evidence

For owners and contractors defending a claim, a statement that a harness was supplied does not complete the analysis. Preserve the equipment, anchorage information, site photographs, work instructions, training records and witness accounts, while addressing immediate safety needs.

This historical decision did not dismiss the worker's case or eliminate statutory liability. It illustrates why the actual protection available and the circumstances of the task matter. Coverage notice and contractual risk-transfer issues should be addressed promptly alongside the defense.

Kushnick Pallaci PLLC assists clients throughout New York with construction litigation and contractor defense. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Storm Property Damage: Documenting Losses and Preserving Insurance Claims

Reviewed September 7, 2026.

This article originally addressed Tropical Storm Hermine in 2016. The storm is historical; the following guidance concerns preparation and response to a new property loss.

Keep insurance policies, claim contacts, photographs and important business records in a secure location with a backup. After a storm, protect people first and avoid unsafe structures, electrical hazards and floodwater.

Document and report the loss

Notify potentially applicable insurers promptly. Photograph or video damage when safe, inventory damaged property, retain estimates and receipts, and confirm important conversations in writing. Take reasonable emergency steps to prevent additional damage, documenting conditions before alteration when possible. Coordinate nonemergency demolition and permanent repairs with the insurer’s inspection and policy requirements; do not discard useful evidence unnecessarily.

Wind, wind-driven rain, storm surge and flooding may be treated differently. Standard homeowners and renters policies generally exclude flood losses, for which separate coverage may be needed. Commercial property and builder’s risk terms require their own review. A storm’s name alone does not determine coverage.

The New York Department of Financial Services’ disaster guidance explains documentation and claims resources. Review any denial against the actual policy, endorsements and facts. Track proof-of-loss, appraisal, notice and suit deadlines separately; a complaint or negotiation does not automatically extend them.

Kushnick Pallaci PLLC assists clients throughout New York with property insurance coverage disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Construction Insurance and Contract Risk: A New York Review Checklist

Reviewed September 7, 2026.

Review the insurance program alongside the construction contract before work begins. A contract can impose obligations that the policy does not cover, and a certificate alone does not resolve that gap.

Documents to collect

Obtain the complete policy, declarations and endorsements; the signed prime contract and subcontracts; additional-insured requirements; and any project-specific coverage restrictions. The New York Department of Financial Services small-business guide explains common policy terms and coverage categories.

Questions to resolve

• Are the correct business entities and operations insured?
• Do exclusions address residential work, height, excavation, employee injuries, subcontractors or designated projects?
• Are ongoing and completed operations addressed where required?
• What deductible or self-insured retention applies, and can defense costs reduce available limits?
• Who must receive notice of an occurrence, claim or lawsuit?

Insurance procurement and contractual indemnification are separate obligations. General Obligations Law § 5-322.1 limits specified construction indemnity agreements. Review each obligation on its own terms.

Confirm any requested change in the actual issued policy or endorsement.

Kushnick Pallaci PLLC assists clients throughout New York with construction insurance coverage and disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Construction Collapse Response: Safety, Reporting, Evidence and Insurance

Reviewed September 7, 2026.

A construction collapse requires immediate protection of people and coordinated professional response. Call 911 for an emergency, evacuate or secure the area as directed, and follow responders’ instructions. Evidence collection must never delay rescue, stabilization or necessary safety measures.

Report and stabilize

For New York City incidents, follow DOB’s worksite incident reporting instructions. Injury incidents require immediate reporting and specified additional information within three business days. Equipment damage also has reporting requirements. Evaluate separate OSHA and other applicable reporting obligations promptly. Engage qualified engineers and authorized contractors; do not reenter or resume work contrary to an order.

Preserve the evidence that can safely be preserved

Record conditions from a safe location, identify witnesses, and preserve plans, site logs, monitoring readings, photographs, messages, inspection records and equipment information. Suspend routine deletion of relevant electronic records when litigation is reasonably anticipated. Coordinate any destructive examination or disposal with counsel, engineers, insurers and other parties as appropriate, while allowing urgent safety work to proceed.

Protect insurance and contract rights

Notify all potentially applicable insurers using the policy’s required procedure, including relevant liability, property, builder’s risk and additional-insured coverage. Keep proof of notice. Review contracts for incident reporting, delay notices, time-extension requests, indemnity and cooperation requirements. A certificate of insurance alone does not establish the scope of coverage.

Counsel can coordinate investigation and claims without substituting for emergency responders or engineers. Keep a clear record of why emergency measures were necessary and what they cost. This article addresses property damage, contractor defense and construction risk management; the firm does not handle plaintiff personal injury claims.

Kushnick Pallaci PLLC assists clients throughout New York with construction-collapse and property damage disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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One- and Two-Family Homeowner Exemptions Do Not Automatically Protect Builders

Reviewed September 7, 2026.

The original article described a proposal to extend a Labor Law exemption to builders of new single-family homes. The current Labor Law § 240 and § 241 contain an exemption for qualifying owners of one- and two-family dwellings who contract for, but do not direct or control, the work.

That language does not automatically exempt a contractor merely because the project is a single-family house. The party's role, property use, work and involvement require evaluation. An owner claiming the exemption must satisfy its requirements; the home's unit count alone does not resolve every case.

Review contractor exposure before work begins

Confirm applicable safety obligations, supervision arrangements, subcontract terms and insurance coverage. Do not price a project on the assumption that a homeowner's potential exemption transfers to the builder.

If an incident occurs, preserve relevant records and notify insurers promptly. This article addresses construction risk and defense considerations for owners and contractors.

Kushnick Pallaci PLLC assists clients throughout New York with construction litigation and contractor defense. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Protecting Neighbors During Construction: Security, Insurance and Access Terms

Reviewed September 7, 2026.

This article originally discussed 2011 Assembly Bill A706, an escrow proposal for neighboring-property damage. Its proposed fund and 60-day claims process should not be assumed to govern a present project.

Use the protections available for the actual work

A negotiated access agreement can address the work, protection and monitoring, insurance, restoration, security where agreed, and procedures for reporting and resolving damage. The amount and release of any security should be stated clearly.

The current RPAPL 881 governs qualifying court applications for adjoining-property access after permission is refused. It addresses documents, insurance, duration, compensation and responsibility for actual damage. It does not establish the old proposal's automatic project-cost escrow and 60-day recovery procedure.

Before neighboring work begins, document existing conditions and obtain relevant plans and coverage information. If damage occurs, prioritize safety, preserve evidence and promptly investigate insurance and legal remedies. Do not wait for a supposed statutory escrow process that has not been established for the project.

Kushnick Pallaci PLLC assists clients throughout New York with construction access agreements and neighboring-property protections. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Notifying Adjoining Owners Before New York City Construction Work

Reviewed September 7, 2026.

The original article discussed an older proposal for 30-day delivery of insurance and permit information. Current notice obligations must be checked under the code and law governing the project.

Under NYC Building Code § 3309.1.1, a construction or demolition project requiring adjoining-property access under that section requires written notification at least 60 calendar days before work. The notice describes the work, schedule, monitoring, protection and project contacts. If unanswered, a second notice is required between 45 and 30 calendar days before commencement.

Notice is not permission to enter

Confirm applicable code provisions, filing dates, later amendments and any other notices required for the work. Obtain an access agreement or appropriate court relief before entering neighboring property.

RPAPL 881 provides a separate procedure for qualifying access applications, including its own refusal and notice provisions. Do not confuse those provisions with the Building Code timetable. Keep copies and proof of delivery, and allow time to resolve objections before scheduling work.

Kushnick Pallaci PLLC assists clients throughout New York with adjoining-property access and RPAPL 881 proceedings. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Insurance for Excavation and Underpinning Damage: Read the Exclusion

Reviewed September 7, 2026.

Damage from neighboring excavation may raise both a claim against the responsible parties and a claim under the damaged owner's property policy. These are separate routes with different requirements.

Pioneer Tower and the later Bentoria decision

In Pioneer Tower Owners Assn. v. State Farm Fire & Casualty Co., 12 NY3d 302 (2009), the Court of Appeals held that the particular earth-movement and settling-or-cracking exclusions did not unambiguously exclude the neighboring-excavation loss.

But Bentoria Holdings, Inc. v. Travelers Indemnity Co., 20 NY3d 65 (2012) enforced an earth-movement exclusion expressly extending to man-made or artificial causes. Pioneer therefore does not establish universal coverage for negligent excavation or underpinning.

Preserve the evidence and policy rights

Arrange an appropriate engineering assessment, document the condition before and after the work, and protect the property from further damage without compromising safety. Notify potentially applicable insurers promptly and retain the complete policies, endorsements, photographs, monitoring records and repair estimates.

Review causation, all exclusions and conditions, proof-of-loss duties and suit limitations. A demand for coverage is not necessarily enough to preserve the time to sue.

Kushnick Pallaci PLLC assists clients throughout New York with property-damage insurance coverage. Contact 631-752-7100 or vtp@kushnicklaw.com.

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After a Construction-Site Accident: Steps for Owners and Contractors

Reviewed September 7, 2026.

Address emergency medical care and immediate hazards first. Then coordinate evidence preservation, required reporting, insurance notice and the response to any claim.

1. Preserve evidence. Retain photographs, video, equipment, project records and witness contact details. Suspend routine deletion of relevant material. Do not use a generic three-year disposal rule where litigation or another retention obligation may continue.
2. Check reporting duties immediately. OSHA's reporting rule generally requires notice of work-related fatalities within eight hours and inpatient hospitalizations, amputations or eye losses within 24 hours, subject to its event and knowledge rules. Other reporting requirements may also apply.
3. Notify insurers promptly. Follow each potentially applicable policy's notice provisions and retain delivery confirmation. Forward demands and lawsuits immediately; initial incident notice does not replace later notice of a suit.
4. Review the coverage response. Obtain a written position and coordinate defense obligations, deductibles and any other available coverage.

A reservation of rights needs review

It is not automatically a denial of defense. Nor does every reservation entitle the insured to select counsel at the insurer's expense. That issue depends on the coverage dispute and a qualifying conflict of interest. Obtain advice before rejecting appointed counsel or agreeing to a settlement.

Kushnick Pallaci PLLC assists clients throughout New York with construction insurance coverage and defense disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Late Notice of a Construction Accident: QBE v. Gangi and Today’s Prejudice Rule

Reviewed September 7, 2026.

In QBE Insurance Corp. v. D. Gangi Contracting Corp., 66 AD3d 593 (2009), the First Department upheld a late-notice disclaimer after a contractor waited roughly three years to report an accident. Its executive officer knew of the serious injury, and the asserted belief in nonliability did not excuse the delay.

Current law requires a separate analysis

For covered liability policies issued or delivered in New York, including renewals, on or after January 17, 2009, the statutory reforms introduced a prejudice requirement. Insurance Law § 3420(a)(5) and (c)(2) addresses that requirement, allocates the burden according to the delay and establishes an irrebuttable presumption in specified circumstances. Claims-made policies require particular attention.

The historical Gangi outcome should not be applied mechanically to every modern policy. Nor does the prejudice rule create permission to delay notice.

Report potentially covered incidents through the policy's required channels, keep proof of delivery, and promptly forward later demands and court papers. Identify all potentially applicable primary, excess and additional-insured coverage.

Kushnick Pallaci PLLC assists clients throughout New York with insurance notice and coverage disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Reading a Construction Liability Policy Before a Claim Arrives

Reviewed September 7, 2026.

A commercial general liability policy is not a promise to cover every construction loss. Read its coverage grants, definitions, exclusions, conditions and endorsements together before pricing the job.

Focus on the actual wording

Employee-injury, cross-liability, subcontractor, residential-work, height and designated-operations exclusions differ. The wording may distinguish the named insured, any insured and an additional insured. Do not assume one exclusion has the same effect in every policy.

Likewise, an agreement to indemnify another party does not automatically create insurance coverage. Contractual-liability provisions and any insured-contract exception must be examined alongside the indemnity agreement. A policy's subcontractor conditions may require particular documentation; there is no universal rule that every New York policy denies coverage whenever a written subcontract is missing.

Check endorsements, not just certificates

The Department of Financial Services explains that a certificate does not confer rights beyond the policy. Obtain the endorsements supporting additional-insured status and verify their conditions, effective dates and scope.

Discuss identified gaps with the broker and counsel before work starts. Keep written coverage requests and the final issued documents, and recheck the program at renewal or when the scope changes.

Kushnick Pallaci PLLC assists clients throughout New York with construction insurance policy review and coverage disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Pioneer Tower: Excavation Coverage Depends on the Policy Language

Reviewed September 7, 2026.

On April 30, 2009, the Court of Appeals affirmed coverage in Pioneer Tower Owners Assn. v. State Farm Fire & Casualty Co., 12 NY3d 302. Flawed underpinning during neighboring excavation allowed earth to slide away beneath a condominium building.

The particular earth-movement and settling-or-cracking exclusions were reasonably open to competing interpretations. The Court adopted the interpretation favoring coverage. The case did not invalidate all earth-movement exclusions or decide coverage nationwide.

The subsequent limitation matters

In Bentoria Holdings, Inc. v. Travelers Indemnity Co., 20 NY3d 65 (2012), the Court enforced broader language expressly covering man-made or artificial earth movement. That wording removed the ambiguity present in Pioneer.

For a current loss, compare the full policy and endorsements with the actual cause of damage. Preserve engineering evidence, provide timely notice and review proof-of-loss and suit requirements. Do not assume that every claim has the same two-year period or that sending a demand commences a lawsuit.

Kushnick Pallaci PLLC assists clients throughout New York with excavation-related insurance coverage disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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Buying the Right Construction Insurance: Lessons from Kay Bee Builders

Reviewed September 7, 2026.

In Kay Bee Builders, Inc. v. Merchant's Mutual Insurance Co., 61 AD3d 720 (2009), a contractor sought recovery after spending approximately $140,000 to repair a subcontractor's roof work.

The 2009 appeal concerned the claims against the insurance agent and agency. They showed that they had obtained the specific general-liability coverage requested, and the contractor failed to raise a factual issue or establish a special relationship supporting negligent misrepresentation. The court affirmed dismissal of those claims. It was not a blanket ruling in that appeal that every defendant insurer had no liability.

Put coverage needs in writing

Describe the work, project types, subcontracting arrangements and particular risks to the broker. Ask how the proposed forms address defective work, resulting property damage, employee claims and any coverage promised in the construction contract.

Compare the request with the policy actually delivered. A general request for business insurance may not secure a particular risk, but an agent's duties also depend on the agreement and relationship. Keep the application, proposals, requests, explanations and final policy for later review.

Kushnick Pallaci PLLC assists clients throughout New York with construction insurance coverage and procurement disputes. Contact 631-752-7100 or vtp@kushnicklaw.com.

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