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Cuomo: Nonessential construction must shut down

The construction industry in Buffalo and statewide just got the order it dreaded: Shut down now.

Acting on behalf of Gov. Andrew M. Cuomo, Empire State Development Corp. Friday directed that all nonessential construction must shut down across the state.

The revised guidance reverses prior direction that considered the construction industry as essential, allowing it to continue virtually unabated.

According to the new rules, only emergency, nonessential construction can continue, where the work is "necessary to protect the health and safety of the occupants," or to finish a job if it would be unsafe to stop it now, but only to complete enough work so that it is safe to close down.

Essential construction work may still proceed as before, but that's now defined narrowly to include critical infrastructure, such as roads, bridges, transit facilities and utilities, as well as hospitals or healthcare facilities, affordable housing and homeless shelters.

Even then, if work continues, companies must take precautions to maintain social distancing, including for elevators, meals, entry and exit. If a site can't do that, it must shut down.

“We were waiting for the other shoe to drop, and drop it did,” said Michael Modrzynski, president of Allied Mechanical. “Half of the projects we were working on don’t fall into the exempted class, so any teammate of ours who was on those jobs no longer has a job until those can start back up.”

Local governments are responsible for enforcing compliance, with fines of up to $10,000 per violation.

But stopping all work isn't as easy as it sounds, said Frank L. Ciminelli II, CEO of Arc Building Partners. "All stop in construction is like trying to stop an aircraft carrier at full engine – it’s extremely difficult to just stop where we are," he said. "We need a glide path and time to transition critical elements of these jobs."

Carl P. Paladino started venting his anger within minutes of Cuomo’s new executive order.

The chairman of Ellicott Development Co. - who ran against Cuomo for governor in 2010 as a Republican - called the new directive unnecessary and a result of “Andrew running for president.”

“He’s killing the economy. This is upstate New York and not New York City where you can do this sort of thing,” he said. “This will put another 10,000 people out of work.”

The order does say that "construction work does not include a single worker, who is the sole employee/worker on a job site." But the meaning isn't clear, companies said.

“I’m kind of beside myself, trying to figure out this last dictate,” said Domenic Cortese, president of Cortese Construction Services Corp., a remodeling and home improvement contractor. “There’s some interpretation here, it seems to me. I wish there was an easy place to get an answer.”

Cortese said his firm has several ongoing jobs that don’t have “working plumbing or viable electrical connections, or even a structural completeness.”

“You could argue that safety would be an issue,” he said.

But ESD spokeswoman Pamela Lent said that’s not the intention.

“You can’t finish unfinished jobs, only to the point where you make it safe,” she said. “Perhaps it would involve sealing off a building or making sure electrical is turned off and not hazardous. It’s a case-by-case thing.”

Anne Duggan, spokeswoman for Ciminelli Real Estate Corp., said the company would continue work on its 201 Ellicott project, which is predominantly an affordable housing project with 201 units. But "our contractor for The West End will be preparing the site for shutdown," she added, referring to the townhome project in the Waterfront Village.

Paladino said his company must meet deadlines on several projects, because prospective tenants have terminated leases in their old premises. Some of those are state entities to whom he rents space, he added.

“We’re working day and night to get this done and could get sued by the state for not performing,” he said.

His son, William - the company's CEO - suggested that the state should adopt different rules for upstate and downstate, "where the spread is more prevalent."

Anthony DeMiglio's AMD Environmental monitors asbestos-abatement projects, of which there are several ongoing in Western New York, and he said that "most of our projects are going to keep moving" - including Shoreline Apartments.

“If there’s an ongoing abatement project, it’s difficult for a contractor to walk away from it,” DeMiglio said. “But all the new projects are on hold as of right now.”

Phil Nanula, CEO of Essex Homes of Western New York, said the directive would mean altering the pace of construction of some developments, and putting future phases on hold. Essex is working on Colvin Estates in Buffalo, and several suburban projects.

So if a house has already been started, Nanula said, “we’re going to get a house to a safe position,” which includes roofing, walls and doors.

Beyond that, Nanula suggested the company could continue some other construction with one worker on a job site, as long as they are separate and independent from others.

“So that’s where the work process would slow way, way down,” Nanula said. “Hanging drywall would be difficult if not impossible to hang a whole house with only one person.”

But DeMiglio isn't sure things will change soon. "I think it’s only going to get worse," he said. "I can’t imagine it’s going to go away in a week or two."

Cortese agreed. "I think we’re done for the foreseeable future," he said.

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