The day after my article was published in the NYLJ, the attorney for P.J.P. Mechanical Corp., Arthur Semetis called me. He told me that the article was right on the money. Notably, he stated that the only substantive defense raised by the general contractor against his client with respect to its invoice for $650,000 was PJP's negligence, thus clarifying that the sole issue in the case was the insured's negligence and not other issues relating to contract.
He likewise was mystified by the Court's comment that he should have moved to dismiss the offset affirmative defense early in the case in order to force the issue to be brought as a counterclaim. Despite his close involvement, he also had no clue as to what theory he could have utilized to have the defense dismissed. He agreed with me that presumably the Court believed such a defense was improperly plead and was really a counterclaim.
Mr. Semetis stated that his client was considering seeking leave to appeal to the Court of Appeals. The $930,000 settlement was reflective of the additional costs of being forced to fire PJP's subcontractor and hire a new one. Nice job Artie!