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Prepare Now For Rising Tide In Green Building Litigation By Paul D'Arelli, Esq. and Jeffrey S. Wer

Friday, April 23, 2010 03:25 am


Despite predictions that the construction industry would be inundated with "green building" lawsuits, there have been few reported lawsuits with direct green building implications -- yet.

The number of green building lawsuits and reported decisions on green building issues will inevitably grow as green building mandates and pursuits proliferate and we return to a robust construction market in coming years. In the interim, a new New York case and earlier Maryland case illustrate how a project?s green building attributes or developer?s sustainability objectives can factor into claims and litigation in an unanticipated manner -- with potential implications for all project participants.

Irreparable harm based upon project?s green features

On November 13, 2009, a New York appellate court upheld a trial court?s decision that the developer of a mega--mall project seeking LEED Platinum certification was entitled to a preliminary injunction requiring its construction lender, Citigroup, to fund certain pending draw requests under the developer?s construction loan. See Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., Destiny USA Holdings, LLC v. Citigroup Global Markets Realty Corp., 2009 WL 2163483, 2009 N.Y. Slip Op. 51550(U) (N.Y. Sup. Ct. 2009).

Notably, in upholding the injunction, the court specifically identified the pr [...]

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