Wednesday, June 3, 2015

Update to NYC Ruling in Favor of Commercial Modular Construction

This update is from Steven Snyder, Attorney. Specializing in modular construction.

Analysis by Attorney Steve Snyder:

The “Supreme Court” of the State of New York is the trial-level court and hears both criminal and civil cases. There is one court for each county, including NYC. NYC’s Supreme Court hears exclusively civil matter. Decisions from this court are appealed to New York State Court of Appeals.

You will note in the opinion, the court writes, “assembly performed at a location other than the jobsite is not plumbing or fire suppression work is rationally based, is not arbitrary and capricious, and is entitled to deference”  This “rationally based” terminology is used in most cases where the court is asked to review the constitutionality of a state statue, and where business and commerce are involved as opposed to some protected class of citizen (such as a statute based on race, creed, color, age, national origin, etc.) In the case of statues regulating commerce, the state agency is given “deference” provided there is some plausible, rational bases for the law and the law is not arbitrary and capricious, which is almost always the case.  Similarly, if the State had passed a law requiring that, in modular buildings, all plumbing and fire suppression work must be performed only by, or under the direct and continuing supervision of a licensed master plumber or a licensed master fire suppression piping contractor, that law would have also received the same rational basis review and the law in that form would have received the same deference. To that end, the modular industry is fortunate that the DOB passed the law favorable to the modular industry.

As a result, while this NYC Supreme Court decision may be appealed to the New York State Court of Appeals, it is not likely that the appellate court will reverse the NYC Supreme Court decision.  As pointed out in the above article, this is not to say that the NY Legislature cannot pass a law amending the DOB regulations to require plumbing and fire suppression work in modular buildings to be performed by or under the supervision of NY licensed plumbers or fire suppression contractor.  The association should be working with modular manufacturers and contractors located in the State of New York, in preparation to lobby against that effort if and when it starts. 

For more information on this or other legal issues affecting the modular industry or your individual company contact Steve Snyder, Esquire, 975-7799

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