S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 754                                                   A. 2279

                       2009-2010 Regular Sessions

                      S E N A T E - A S S E M B L Y

                            January 15, 2009
                               ___________

IN  SENATE  --  Introduced  by  Sens.  BRESLIN,  HUNTLEY,  SCHNEIDERMAN,
  STACHOWSKI, STAVISKY, THOMPSON -- read twice and ordered printed,  and
  when printed to be committed to the Committee on Consumer Protection

IN  ASSEMBLY  --  Introduced  by M. of A. CUSICK, HYER-SPENCER -- Multi-
  Sponsored by -- M. of A. GUNTHER, MAGEE,  PHEFFER  --  read  once  and
  referred to the Committee on Consumer Affairs and Protection

AN  ACT  to  amend the general business law, in relation to retention of
  construction contracts

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  756-c  of  the general business law, as added by
chapter 127 of the laws of 2002, is amended to read as follows:
  S 756-c. Retention. By mutual agreement of  the  relevant  parties  an
owner  may retain a reasonable amount of the contract sum as retainage[.
A]  AND FOR ANY CONSTRUCTION CONTRACTS, EXCLUDING CONSTRUCTION CONTRACTS
FINANCED BY A PUBLIC BENEFIT CORPORATION, SUCH RETAINAGE SHALL BE DEPOS-
ITED IN A SEPARATE INTEREST BEARING ESCROW ACCOUNT WITH  A  THIRD  PARTY
ESCROW  AGENT.  AS  OF  THE  TIME  OF  THE DEPOSIT OF THE RETAINAGE, THE
RETAINED FUNDS SHALL BECOME  THE  SOLE  AND  SEPARATE  PROPERTY  OF  THE
CONTRACTOR.  INTEREST  ON THE RETAINED FUNDS SHALL ACCRUE AT AN INTEREST
RATE AT LEAST EQUAL TO THE PREVAILING INTEREST RATE PAID ON DEPOSITS  BY
THE  ESCROW AGENT. ALSO, A contractor or subcontractor may [also] retain
a reasonable amount for retainage so long as the amount does not  exceed
the  actual  percentage  [retained]  DEPOSITED  IN  ESCROW by the owner.
[Retainage] THE ESCROWED RETAINAGE shall  be  released  by  the  [owner]
OWNER'S  WRITTEN  DIRECTION  TO THE ESCROW AGENT TO DELIVER THE ESCROWED
RETAINAGE to the contractor no later than thirty days  after  the  final
approval of the work under a construction contract. In the event that an
owner  fails to release THE ESCROWED retainage as required by this arti-
cle, or the contractor or subcontractor fails to release a proportionate

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00280-01-9
              

S. 754                              2                            A. 2279

amount of retainage to the  relevant  parties  WITHIN  FIVE  DAYS  after
receipt  of  THE  ESCROWED  retainage  from  the  owner, (I) the owner[,
contractor, or subcontractor, as the case may be, shall  be  subject  to
the payment of interest at the rate of one percent per month on the date
retention  was  due and owing] SHALL BE SUBJECT TO THE PAYMENT OF INTER-
EST, IN ADDITION TO THE ESCROW INTEREST, AT THE RATE OF ONE PERCENT  PER
MONTH  COMMENCING  ON THE DATE THE RETAINAGE WAS DUE TO BE RELEASED FROM
ESCROW; AND (II) THE CONTRACTOR OR SUBCONTRACTOR, AS THE  CASE  MAY  BE,
SHALL  BE  SUBJECT TO THE PAYMENT OF INTEREST ON THE AMOUNT OF RETAINAGE
IT HOLDS AT THE RATE OF ONE PERCENT PER MONTH COMMENCING ON THE DATE THE
RETAINAGE WAS DUE TO BE RELEASED BY SUCH CONTRACTOR OR SUBCONTRACTOR.
  S 2. This act shall take effect immediately and  shall  apply  to  all
contracts entered into on or after such effective date.