Brian G. Lustbader

Partner
Lustbader Brian

Drawing on his experience managing his family’s contracting business, as well as a civil engineering degree, Brian Lustbader brings a unique business, technical, and legal perspective to his construction law practice. Whether he is working on construction contract drafting and negotiation; alternative dispute resolution, including mediation and arbitration; or general litigation, Brian’s sharp writing and negotiation skills allow him to provide maximum value to his clients during all phases of a construction project. He has successfully resolved through mediation numerous construction disputes that had been hopelessly mired in litigation.

Brian primarily represents owners and developers, although he has also acted as counsel for architects, engineers, contractors, and subcontractors. His experience as a contractor informs his representation of construction clients, having developed a deep understanding of the process from both sides.

Brian also has comprehensive experience with assisting clients in protecting or gaining access to neighboring properties during construction, an increasingly vital skill set, given the high-density nature of construction in New York. When he is working with license agreements, Brian’s level-headed and systematic approach allows him to effectively work with all parties in order to achieve the client’s desired result.

As co-chair of the New York State Bar Association Real Estate Construction Committee, Brian oversaw the preparation of an owner-oriented rider to the AIA A107 Contractor Agreement form and is currently preparing an owner-oriented rider to the AIA B104 Architect Agreement form.

Experience

Representative Matters

  • On behalf of a developer and builder of a multi-story mixed-use building in Manhattan, obtained dismissal of two orders to show cause seeking to halt construction on the ground that the building did not conform to special zoning rules governing building construction in the area, thereby allowing the project to proceed without interruption 
  • On behalf of a developer and builder of a pre-fabricated “pod” hotel in Brooklyn, NY that had experienced extensive leaks, conducted a mediation during which successfully resolved the dispute with the key players
  • On behalf of a foreign national who purchased a “white box” (i.e. empty) duplex condominium unit in excess of $70 million in a newly constructed building in Manhattan, prepared of requests for proposals from costs consultants, project managers, architects, and contractors and thereafter prepared agreements for each, in particular, a detailed general contractor agreement, and subsequently negotiated change orders in connection with that agreement
  • On behalf of the owner and developer for a total rehabilitation and restoration of a historic, landmarked building in lower Manhattan, prepare a construction management agreement and currently negotiating project close-out regarding both the client’s construction manager and its development manager
  • On behalf of a well-known New York private school, regarding its major construction project that included a new science center and renovation of a physical education facility, successfully conducted long and difficult negotiations with the construction manager to close out the agreement, dealing with significant change orders arising from an earlier work stoppage, lengthy punch list items to be completed, among many other issues, and prepared an agreement with a different contractor for renovation of another building.
  • On behalf of a cooperative building complex consisting of three large buildings with nearly 1700 shareholders/unit owners, prepared and successfully negotiated construction agreements relating to three major projects – façade and terrace replacements, hallway renovations and paving and negotiated several major change orders, and are finalized close-out.
  • Drafted and negotiated a contract for a $140 million project in Jersey City for mixed residential use on behalf of a major New York-based developer
  • Prepared and developed an agreement for a $60 million project on the Upper East Side of Manhattan
  • Prepared and negotiated license agreements on the behalf of a developer of a multistory residential building in Lower Manhattan and a developer of a condominium project on the Upper East Side of Manhattan
  • Negotiated a multi-million-dollar construction contract with a public authority on Long Island on behalf of a major construction contractor
  • Represented a public university in litigation against a contractor for improper installation of buried hot water and heating pipes
  • Successfully mediated litigation between a stone supplier and its supplier
  • Assisted in the creation of a new law in New York by obtaining outright dismissal of an improperly filed mechanic’s lien by a developer
  • Successfully mediated and settled a dispute between a major public university and its architect regarding a curtain wall design failure

Insights

Credentials
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Education

  • J.D. Columbia Law School 1978
    • Harlan Fiske Stone Scholar
  • B.S. Civil Engineering and Humanities Massachusetts Institute of Technology 1975
    • Phi Beta Kappa

Bar Admissions

  • New York

Court Admissions

  • U.S. District Court for the Eastern District of New York
  • U.S. District Court for the Southern District of New York

Professional Memberships and Activities

  • Member, American Bar Association
    • Dispute Resolution Section
    • Mediation Committee
    • Arbitration Committee
    • ADR Practice Management, Business & Skills Development Committee
    • Forum on Construction Law
    • Contracts Documents Division
    • Project Delivery Systems Division
    • Dispute Avoidance & Resolution Division
    • Litigation Section
    • Alternative Dispute Resolution Committee
    • Construction Litigation Committee
    • Real Estate Litigation and Condemnation Committee
    • Owners & Lenders Division Committee
  • Member, Legal Counsel Committee, Construction Management Association of America
  • Member, Construction Law Committee, New York County Lawyers Association
  • Member, New York State Bar Association
    • Commercial and Federal Litigation Section
    • Real Estate Section
  • Co-chair, Construction Law Committee, New York State Bar Association

Recognition
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  • The Best Lawyers in America, 2014, 2016 – 2022
    • Lawyer of the Year, Construction Law, New York City, 2021
  • Chambers USA, Construction, New York, 2015 – 2016, 2018 – 2021
  • Super Lawyers, New York Metro, 2014 – 2015, 2017 – 2019
  • Legal 500, Construction, 2018 – 2019

Community
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Personal Activities

  • Past president, Park Avenue Synagogue