DAVIDSON PIPE SUPPLY CO., INC., APPELLANT, v. WYOMING COUNTY INDUSTRIAL
DEVELOPMENT AGENCY, ET AL., RESPONDENTS.
85 N.Y.2d 281, 648 N.E.2d 468, 624 N.Y.S.2d 92 (1995).
February 21, 1995
4 No. 28 (1995 NY Int. 042)
Decided February 21, 1995
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
William S. Sterns, III, for Appellant.
Eric T. Dadd, for Respondents Wyoming Co. IDA et al.
Robert W. Michalak, for Respondent Indeck Energy.
SMITH, J.:
The issue here is whether a construction project developed with the
assistance of an industrial development agency is properly considered
a "public improvement" under State Finance Law § 137 requiring
alternative bonds to insure that suppliers of goods and services will
receive payment. Because we hold that the subject project is not a
"public improvement" within the meaning of the statute, we affirm the
order of the Appellate Division.
In 1988 defendant Indeck Energy Resources of Silver Springs, Inc., a
privately owned company, entered into an installment sale agreement
with defendant Wyoming County Industrial Development Agency (WCIDA) to
secure tax and other benefits in conjunction with its development of
an energy cogeneration plant for the production of steam and electric
energy for sale to private companies. The agreement contained sale and
leaseback provisions which essentially resulted in WCIDA's status as a
temporary owner for tax purposes. These parties also executed a credit
agreement with the Bank of New England, N.A., with Indeck as the
borrower. Under the installment sale agreement and the credit
agreement, all risks and benefits associated with the project were to
be born by Indeck.
Indeck enlisted National Energy Production Corp. (NEPCO) as its
general contractor. NEPCO hired Fels Co., Inc. (Fels) for
steel-related work. Fels contracted with plaintiff Davidson, who
delivered steel pipe and related materials to Fels at an agreed price
of $136,639.32, which has not yet been paid to Davidson. Davidson
subsequently commenced this action against WCIDA, its members and
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
The issue here is whether a construction project developed with the assistance of an
Because we hold that the subject project is not a "public improvement" within the meaning of
In 1988 defendant Indeck Energy Resources of Silver Springs, Inc., a privately owned company,
NEPCO hired Fels Co.,
Fels contracted with plaintiff Davidson, who delivered steel pipe and related materials to
The complaint alleged that the project was a public improvement under State Finance Law §
Supreme Court granted plaintiff's motion for partial summary judgment, holding defendants
Plaintiff contends that the underlying project is a "public improvement" for the purposes of
New York's Lien Law permits suppliers of materials to obtain mechanics' liens upon an owner's
While WCIDA is a public benefit corporation under the General Municipal Law, 858, 901-b) and
the Legislature has defined the term "public improvement."
the 1992 amendment to that Lien Law statute also confirms the non-public nature of the
Therefore, because the project here was not of the class contemplated by the Legislature to
In addition to other bond or bonds, if any, required by law for the completion of a work
ent of moneys due to all persons furnishing labor or materials to the contractor or his
|
