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FROM KEN’S DESK: PJ EXTERIOR...

FROM KEN’S DESK: PJ EXTERIOR LITIGATION CASE

  • December 28, 2018

Anyone who grew up in Southern Dutchess County 40 years ago knows the JW Mays Building.  It is part of the old Dutchess Mall just south of Interstate 84 on Route 9.  A lot of us left for college and were pleasantly surprised when we returned to discover that a mall had finally come to Fishkill.

Jim Lampi is the owner of PJ Exteriors, Inc.  He builds flat roofs.  He was hired to build the roof on the JW Mays Building.  Something happened.  He was thrown off the job.  He was sued.  Five years later, he won a judgment against the owners of that building in the amount of $415,574.00.  Stenger, Roberts, Davis & Diamond, LLP (SRDD Law) represented Jim and his company.

Everyone involved in this litigation had some connection with that building.  Judge Forman had a job in it when he was a teenager.  I shopped in that building and hung out in that mall after I came home as a young lawyer at the age of 23.  The same family owned the Mays building.  Jim Lampi had built flat roofs throughout Dutchess County including most of IBM East Fishkill and the Galleria.  The only roof he may never have worked on was the Mays building.  Although he, like all of us, had been in that building when we were young.

Jim Lampi had a subcontract to replace the roof on the JW Mays building which had been leaking for years.  Although work was supposed to start in September of 2014, it did not start until November because of unforeseen delays.  The work dragged into January.  That January was one of unpredictable weather.  There was freezing rain one day.  There was snow the next.  In between, there was unseasonable warmth.

The flat roof was a little over 100,000 square feet.  In order to put down the new roof, it was necessary to remove the old one. This was done in sections.  Every night the crew buttoned up the job so that it wouldn’t leak.   Every morning, there would be water on the roof either from the rain or the melting snow.

There were leaks in the old roof.  There were no leaks in the new roof.   However, on January 6, 2015, Jim Lampi and his crew were thrown off the job by JW Mays because of reported leaking at the job.  They were told not to return upon penalty of being arrested.  They left without buttoning down the job.

Jim Lampi retained this SRDD Law shortly after being thrown off the job.  We filed a mechanic’s lien on his behalf.  We urged Jim to contact the owner with the request that he be given a chance to address whatever issue had caused him to be thrown off the roof before weather destroyed the work that he had partially completed.  Shell shocked as he was, Jim didn’t hesitate to do what had to be done.  He made the phone calls.  The response was ferociously negative.

Jim contacted the manufacturer of the roof.  His contract required that he deliver a warranty to JW Mays.  He wanted someone from the manufacturer to inspect the roof and let him know whether or not that work would support the issuance of a warranty if it were allowed to be completed.  Jim somehow got the manufacturer’s representative on the roof shortly after meeting with me.  No one got arrested.  This, as things turned out, was the reason why Jim won his case.

Nearly a month after Jim was thrown off the roof, Mays hired a contractor out of NYC to tear up the new roof and replace it with a new one.  By the time anyone could get on the roof, the destruction of the roof that Jim had installed was already underway. The experts had to deduce what had happened under the roof installed by Jim rather than being able to determine exactly what happened because it was half way gone when inspections were finally allowed.  Only the manufacturer’s rep could say what it has been like a few days after Jim was thrown off the job.

Litigation is not an inexpensive enterprise.  The costs are enormous in terms of time and money.  Mostly, however, they are enormous in terms of the time.  You can get the money back. You can’t get back the time.  But Jim had no choice.  Mays was determined to recover the cost of the new roof from Jim.  That cost was in excess of $800,000.00.

The case lasted nearly four years.  Over time, it became clear that the decision to terminate Jim was made within a small group of Mays management without a lot of thought.  The decision, once made, took on a life of its own.  Mays never gave Jim a chance to go back on the roof and discuss the condition with it or button up his work.  It never called the manufacturer of the roof for an inspection.  It simply fired Jim and sued him for nearly a million dollars.  I don’t know why that happened.  Jim didn’t have any choice but to fight back.  I just know it happened that way and we were able to prove that to be the case in Court.

A trial was held in the summer of 2017 and it took nearly two weeks of testimony mainly because there were over 200 exhibits.  It concluded in the late summer of 2017 and took another four months to get the transcript from the trial.  A decision was finally made in the matter on October 30, 2018.

Jim won everything.  The Court dismissed all of the Mays claims against him.  It awarded him damages in an amount in excess of $400,000.00. Jim’s ordeal is not without lessons for all of us.  Here are a few of them:

  1. It is never too soon to retain counsel. As frightening as a situation may be, it will only get worse if you ignore it. That is a general rule for life.  That is a specific rule for litigation.  The case starts the day that circumstances give it life.
  2. Sometimes, the best lawyer in the room is your client. The most critical step in this litigation was Jim’s decision to reach out to the manufacturer to have the representative inspect his work before it was destroyed.  That representative no longer worked for the manufacturer at the time of the trial.  It took us nearly a year to find him.  We did find him. He did testify.  That testimony was critical to the outcome.
  3. A big piece of the damages awarded to Jim was for legal fees. The general rule is that the winner never recovers legal fees from the loser.  However, Jim had a provision in his contract which allowed him to recover legal fees.  Even though Jim’s contract was not directly made with Mays, Mays was required to reimburse to Jim for all of his legal fees as a result of its conduct.  Without that provision in his contract, Jim would not have been made whole in this litigation. Almost everything he won would have gone to the cost of winning it.
  4. A big piece of the award to Jim was for interest on the amount of his damages. This is a huge factor in commercial litigation.  A claim for personal injury does not accrue interest from the date of the injury.  On the contrary, a claim for any damage to property or a contract claim accrues interest at a statutory rate of 9% per annum from the date of the event which gives rise to the litigation.  Here, Jim was awarded nearly four years of interest on his claim.  Even if Jim had no contractual basis to recover his legal fees, that accrued interest, would have offset a large portion of that expense.

This was a classic case of a large corporation determined to spend a smaller defendant under the table.  Jim never gave up.  Neither did SRDD Law.  Together, we were two kids from Fishkill taking on a corporate bully.  We won. There was no appeal.  The judgment was satisfied.

A recent update from someone who responded to our post, “and as Karma would have it that new roof recently leaked so bad it caused flooding and vendors to leave the flea market with their entire stock destroyed by water damage”.

I am proud of this law firm and I am proud that Jim believed in us long enough to let us finish this fight.   I was assisted in this matter by Karen P. MacNish.  You can read the Court’s decision here.

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