David Westermann, Jr.

Co-founder, Member

Uniondale, NY

Dave is a co-founder of WSKSA. He entered the practice of law on Long Island in 1981 before joining the Wall Street construction and surety litigation firm of Buckley, Treacy, Schaffel, Mackey and Abbate. In 1987, Dave co-founded Westermann and Tryon in Garden City, New York, continuing to practice construction and surety law in both the private and public sectors. In 1998, he co-founded Westermann Hamilton and Sheehy, which has evolved into WSKSA.

Throughout his over 30-year legal career, Dave has focused on construction and surety litigation as well as on transactional work. He has handled numerous payment and performance disputes on public and private projects of every description throughout North America — including New York, New Jersey, Delaware, Missouri, Texas, Florida, Pennsylvania and Ontario — and in the Caribbean.

Dave brings superior legal skills and representation to owners, developers and major construction managers and consultants, starting at contract negotiation and continuing through claim handling and all types of litigation/dispute resolution. Dave’s knowledge base of construction issues and his past experience enable him to provide a unique, efficient and winning perspective to any issue that may occur on a construction project, including impact and delay claims. He has mediated, arbitrated and litigated construction-related disputes in federal and state courts and before federal agency courts under the federal Contract Disputes Act. He has been lead construction counsel on several projects with costs of construction in excess of $500 million. Dave’s public projects include bridges, large outfalls, landfills, highways, subway tunnels and stations, railroad projects, hospitals, schools, office buildings, a diplomatic mission and military installations, stadiums and arenas, among others. Dave’s private projects include office buildings – many 50 stories or more – bank facilities, trading floors, high-risk data centers, large luxury hotels and boutique hotels, high-rise residential buildings, a newspaper printing plant, and private school structures, among others).

David Westermann, Jr.

Representative cases

  • Smith v. Silverman (In re Richard A. Smith), 645 F.3d 186 (2d Cir. 2011) – Defeated debtor’s attempt to re-open bankruptcy case against Trustee.
  • Sorbara Construction Corp. v. Leon D. DeMatteis Construction Corp., Supreme Court of the State of New York, Nassau County (2010) – Obtained summary judgment on counterclaim against subcontractor for breach of contract involving delays caused to construction project by the collapse of subcontractor’s tower crane.
  • Leon D. DeMatteis Construction Corp. v. Vigilant Insurance Company, Supreme Court of the State of New York, New York County (2010) – Defeated a series of bond-base defenses alleged by surety seeking to avoid liability for delay arising from crane collapse.
  • Millgard Corp. v. EE Cruz/NAB/Frontier-Kemper, 2003 WL 22741664 (S.D.N.Y.) – Obtained summary judgment against contractor, dismissing contractor’s claim for breach of contract that rely on extrinsic evidence.
  • Serf Realty Co. v. Bennigan’s of New York, Inc., 216 A.D.2d 377, 628 N.Y.S.2d 164 (2d Dep’t 1995) – Obtained summary judgment declaring plaintiff had no right to terminate a lease in connection with a condemnation procedure.
  • City of New York v. Uniformed Firefighters Association, Local 94, IAFF, AFL-CIO, 58 N.Y.2d 957, 447 N.E.2d 69, 460 N.Y.S.2d 521 (1983) – Obtained reversal of lower court’s granting plaintiff’s motion to vacate an arbitration award.
  • Schiavone Construction Company, Inc. v. County of Nassau, 717 F.2d 747 (2d Cir. 1983) – Obtained award of over $1 million for construction company based on cause of break in sewer line and for extra work.
  • Leon D. DeMatteis Constr. Corp. v. General Services Administration, United States Civil Board of Contract Appeals – Obtained $27.5 million equitable adjustment through mediation.

David Westermann, Jr.

Representative projects

Residential and Hotel

  • The Plaza Hotel, 768 Fifth Avenue, New York, New York
  • 225 Fifth Avenue, New York, New York
  • The O’Neill Building, New York, New York
  • New Residential Tower, 310 52nd Street, New York, New York
  • 425 Fifth Avenue Condominiums, New York, New York
  • The Seville, East 77-78 Streets and Third Avenue, New York, New York
  • The Impala, New York, New York
  • The Wellington Hotel, New York, New York
  • The Indigo Hotel, New York, New York
  • The Azure, New York, New York

Commercial

  • Citicorp Tower, Long Island City, New York
  • Citicorp Center Condominium, 153 East 53rd Street, New York, New York
  • Citibank Card Products Credit Service Centers, Erlanger, Kentucky; Napa Valley, California; Dallas, Texas
  • Citibank Tampa Bay Corporate Complex
  • Bank Corporate Headquarters, Hicksville, Long Island
  • Bell Atlantic Tower, Philadelphia, Pennsylvania

Public Works Projects

  • United States Mission to the United Nations, New York, New York
  • United States Military Academy, Basketball and Hockey Arena
  • Mississippi Army Ammunition Plant, 175MM Artillery Shell Production Facility
  • NYCTA Rail Control Center, New York, New York
  • Brooklyn House of Detention, Brooklyn, New York
  • Rehabilitation of Broadway/East New York Station Complex, New York/Brooklyn, New York
  • William H. Maxwell High School, Brooklyn, New York
  • Frank Sinatra High School, Queens, New York
  • Sunset Park High School, Brooklyn, New York

David Westermann, Jr.

Publications

  • Co-author, “ABA Surety Law Review for 1997,” ABA Tort and Insurance Law Journal, Winter 1998
  • Contributing author, The Construction Claims Deskbook: Management, Documentation and Presentation of Claims (Construction Law Library), John Wiley and Sons, Inc., 1996
  • Co-author, New York Construction Law: What Do You Do When…?, National Business Institute, Inc., 1996

Presentations

  • Nassau County Bar Association - Book and Movie Deals and Related Copyright Issues (with Nelson DeMille), September 2007
  • 82nd Meeting of the Transportation Research Board, Washington, D.C., January 2003
  • New England Surety Bond Association - New York City Performance Bond and Demands Under the New Form, February 1999

Practice Areas

  • Construction and surety law
  • Construction transactional practice
  • Commercial litigation
  • Entertainment law
  • Employment law

Bar Admissions

  • New York, 1981
  • U.S. District Court, Eastern District of New York, 1981
  • U.S. District Court, Southern District of New York, 1981
  • U.S. District Court, Northern District of New York, 1987
  • U.S. Court of Appeals, Second Circuit, 1983
  • U.S. Tax Court, 1983

Education

  • J.D., Washington and Lee University School of Law, 1980
    • Lewis F. Powell Medal for Excellence in Advocacy
  • A.B., Columbia College, Columbia University, 1977