SUBCONTRACTORS NEWS July/August 2014
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Bringing New York’s Union Subcontractors Together to Build a Stronger Construction Industry IN THIS ISSUE
2 President’s Message 3 NYC Helmets to
Hardhats Provides Thousands of Trained Veterans to Subcontractors
5 Revised New York City
Construction Safety Code To Be Implemented Soon
6 Mayor de Blasio
Appoints New Buildings Commissioner
7 Save the Date! STA General Membership Meeting, Oct. 1
8 Liquidating Agreement
Strategies – Don’t Let The Owner Slip Away
12 STA Member Profile: United Iron, Inc.
16 Fraud Detection/
Prevention And Insurance Coverage
22 See the Captain for
the Last Time at Yankee Stadium with the STA Discount Code!
July/August 2014
NYC Helmets to Hardhats Dedicated to Helping Veterans Find Future in Construction
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STA Subcontractors News
PRESIDENT’S MESSAGE As this is my inaugural President’s Message, I would like to take this opportunity to thank the membership of the STA for their continuing ongoing support of our organization. Remember Nothing Happens Without Subcontractors As most of you know, I have been an active member of the association and a member of the Board of Directors for many years now and I look forward to working with friends and colleagues in my new role. I would like to set some goals or directions that we can accomplish together, namely prompt pay, prompt issuance of change orders, standardizing safety requirements on all projects, 240/241 Reform, onerous contract requirements, stronger participation by our members, more participation with associations, items that will make it a better industry for all subcontractors, contractors, owners, agencies and organizations. I would like to sincerely thank Jerry Liss, our outgoing President, for his service, leadership and the professional stature he has brought to the industry and to the surrounding issues that are important to subcontractors. I am also pleased to welcome the new Commissioner at New York City’s Department of Buildings, Rick Chandler, to his new role, and I know that the entire construction community looks forward to working with him. As you will see in this issue of the STA newsletter, we are pleased to highlight our partner, Helmets to Hardhats, an association that continues to assist in placing qualified veterans into construction jobs in our region—as this is a priority for our membership and our industry and we appreciate their contribution to our workforce. Thank you to all who supported our Annual Awards Dinner in May, our golf outing in June, and our various programs throughout the year. We have a full calendar of meetings and events kicking off this fall, prepared by STA Board of Directors member James Flynn of Independent Temperature Control. I look forward to working with all of you in advancing the STA as New York City’s premier resource for subcontractors. Sincerely, Robert Ansbro President
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July/August 2014
NYC Helmets to Hardhats Provides Thousands of Trained Veterans to Subcontractors BY KELLY SAELI, DIRECTOR OF OPERATIONS, NYC HELMETS TO HARDHATS, INC.
NYC Helmets to Hardhats, Inc. (NYC H2H) is a nonprofit organization dedicated to positioning military veterans in building trades apprenticeship programs throughout New York City. In addition to placing candidates within construction training programs, NYC H2H is committed to situating veterans and transitioning military personnel in managerial, supervisorial, administrative and clerical positions within the construction industry.
The advantages of working with NYC H2H include:
As a subcontractor, human capital is a major asset. Military veterans exhibit intense dedication to their civilian careers and NYC H2H can be a vital resource to develop a veteran workforce.
Since 2003, NYC H2H has helped place over 2,000 military veterans in building trades apprenticeship programs. NYC H2H’s mission is ambitious and it needs continuous support to expand. Candidates frequently thank NYC H2H for not only placing them into a job, but for placing them into a career. NYC H2H is essential for every subcontractor’s veteran placement needs.
NYC H2H will partner with subcontractors for all their placement needs and its process is simple: 1. Veteran candidates register on the NYC H2H website (www.helmetstohardhats.org). • Registration requires basic contact information (name, address, phone number and email) and a current resume or the candidate must complete a resume profile using the online resume builder. 2. Any veteran that is registered within New York or New York City is contacted by NYC H2H and goes through a rigorous screening process. 3. NYC H2H then matches candidates with employers based on character, civilian experience, military experience and career goals.
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• Thousands of leading, industry-specific veteran candidates. • Initial and thorough job screenings. • Assistance in managing the job application process. • A streamlined recruitment process. • A continuous pipeline of veteran candidates for subcontractors.
https://www.helmetstohardhats.org/ http://www.nych2h.org/
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STA Subcontractors News
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July/August 2014
Revised New York City Construction Safety Code To Be Implemented Soon BY HANK KITA, EXECUTIVE DIRECTOR, SUBCONTRACTORS TRADE ASSOCIATION
When the appointment of Rick Chandler as the new Commissioner for the New York City Department of Buildings (DOB) was recently announced, much emphasis was placed on his role in implementing the City’s revised Building Code which was passed by the City Council and signed by Mayor Bloomberg last year. The new Building Code is scheduled to be implemented on October 1, 2014. While the revised New York City Building Code will affect all phases of construction, special attention will be focused by the construction industry on Chapter 33 which regulates and enforces safety in construction operations. While at the Building Trades Employers’ Association (BTEA), I had the honor to co-chair the Department of Buildings industry advisory committee for Chapter 33. Composed of stakeholders from various facets of the industry such as contractors, real estate owners and developers, government officials, architects, engineers, unions and safety professionals, the Chapter 33 advisory committee dissected every line of the safety code over a period of 20 months. After much discussion and debate, a consensus document was forwarded to the Department of Buildings and subsequently included in the overall New York City Buildings Code that was enacted into law. The soon to be implemented Chapter 33 will not have a large number of significant changes in prescribing safety operations on construction sites throughout New York City. Most changes in this part of the Code will consist of fine tuning the language that was developed during the 2008 Building Code review process.
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Hopefully, the transition to the new Safety Code will be relatively uneventful and seamless come October 1. As he oversees the implementation of the new code, I would urge Commissioner Chandler to instill a “common sense” rather than “punitive” approach within DOB to the enforcement of the new code. Instead of adding to the already high cost of construction in New York City, code enforcement activities should perhaps look to remedy minor violations before moving to fines and stop work orders. That is not to say that repeat and serious violators should not be subject to serious financial and site sanctions however. In order to assist our members in gaining a clear understanding of the new Safety Code, the STA will be cosponsoring, along with the BTEA, a half day seminar on this subject on September 23 at the McGrawHill Gallery in New York City from 8:00 a.m. to 1:00 p.m. The presenters at this seminar will be staff from the New York City Department of Buildings. I urge the members of the STA to take advantage of this educational opportunity and gain further knowledge on this important part of the construction process. Please click here for more information or to register for this event. For questions, please contact Lena Vega at the BTEA at lvega@bteany.com.
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Mayor de Blasio Appoints New Buildings Commissioner On July 17, 2014, New York City Mayor Bill de Blasio appointed Rick Chandler as the new Commissioner of the Buildings Department.
Hurricane Sandy. Mr. Chandler is a professional engineer and brings with him many years of largescale management experience and expertise in the building code and zoning.
Mr. Chandler has served as assistant Vice President of facilities at Hunter College in New York following his position as a Borough Commissioner of Queens, Brooklyn and the Bronx from 1995-2002.
Please see the following link for more information on newly appointed Commissioner of the Buildings Department Rick Chandler.
He was part of the Buildings Department teams that inspected structures surrounding Ground Zero after 9/11 and the damages at Hunter College following
For more information, please visit http://observer.com/2014/07/bill-de-blasio-appointsbuildings-commissioner/
Mayor Bill de Blasio, left, and new Buildings Commissioner Rick Chandler, right
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July/August 2014 ADVERTISEMENT
SAVE THE DATE OCTOBER 1, 2014
STA GENERAL MEMBERSHIP MEETING When: Wednesday, October 1, 2014 5:15 p.m. – 8:00 p.m.
Where: The Automotive Center for Education and Training 15-30 Petracca Place Whitestone, NY 11357
5:15 p.m. – 6:15 p.m. Networking Hour & Dinner 6:30 p.m. Construction Insurance Presentation and Panel Please look out for more information on the STA’s next General Membership Meeting in the coming weeks. If you would like to reserve a spot early, please contact Samantha Sweeney at ssweeney@stanyc.com or 212-398-6220.
$65 for Members ($70 at the door) $75 for Non-Members
Call or Print & Fax the Form Below REGISTRATION FORM – GENERAL MEMBERSHIP MEETING – OCTOBER 1, 2014 Subcontractors Trade Association 1430 Broadway, Suite 1600 • New York, NY 10018 Tel: (212) 398-6220 • Fax: (212) 398-6224 • ssweeney@stanyc.com Name(s) Tel: Email:
Company Fax:
$65 for Members ($70 at the door) $75 for Non-Members Check Enclosed: $ for reservations
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STA Subcontractors News
Liquidating Agreement Strategies – Don’t Let The Owner Slip Away BY HENRY L. GOLDBERG, MANAGING PARTNER, GOLDBERG & CONNOLLY AND STA LEGAL COUNSEL
It is clear that owner-caused acts and omissions frequently damage a subcontractor. However, to whom can a subcontractor turn to for compensation for owner-caused damages? The subcontractor is precluded from bringing suit directly against the owner to collect damages because it does not have a direct contractual relationship, that is, it is not in “privity of contract” with the owner. Furthermore, ordinarily a general contractor is not responsible for purely owner-caused problems because, as held by New York’s Court of Appeals, a general contractor is not liable for the actions or omissions of an owner. This can create a “privity trap” for a subcontractor. If an owner’s acts and/or omissions, solely, led to a subcontractor’s increased costs, the subcontractor will need a way to bridge the privity gap to hold the owner accountable.
sue the owner on behalf of its subcontractor. New York courts do recognize liquidating agreements as a valid mechanism for bridging the privity gap between an owner and subcontractor, but only if very specific provisions, as set forth below, are included.
In many states and under federal law, a subcontractor may commence an action against the general contractor for owner-caused damages and the general contractor may, in turn, sue the owner. These lawsuits will allow the rights and liabilities of all the parties to be sorted out in one lawsuit. In New York, if the general contractor is sued by a subcontractor, it may be able to successfully assert the defense that the source of any liability for a “solely owner-caused” issue is the owner’s exclusive responsibility.
As held by New York courts, liquidating agreements must have all three of the following basic elements:
To address these privity concerns, subcontractors and general contractors commonly enter into “liquidating agreements” to address the issue of owner-caused damages. A liquidating agreement is an agreement between the general contractor and its subcontractor, which allows the general contractor to
3. A provision that provides for the ‘pass-through” of that recovery to the subcontractor.
In a liquidating agreement, the general contractor and its subcontractor agree to liquidate the damages in the amount, if any, which the general contractor recovers from the owner for the damages the subcontractor incurred as the result of the owner’s acts or omissions. Therefore, whether a general contractor sues the owner, or the subcontractor sues in the name of the general contractor, under such a liquidating agreement, the general contractor will not be required to pay more money to the subcontractor than it collects from the owner.
1. The imposition of liability upon the general contractor for the subcontractor’s increased costs, thereby providing the general contractor with a basis for legal action against the owner; 2. A “liquidation of liability” in the amount of the general contractor’s recovery against the owner;
Note the first element in particular. For a liquidating agreement to be valid, it must expressly state that the general contractor acknowledges its liability to continued on page 10
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STA Subcontractors News
continued from page 8 the subcontractor (at least to the extent it collects on its sub’s behalf from the owner). Without this express “magic language,” a liquidating agreement is unenforceable in New York. A liquidating agreement may take many forms. It may be memorialized by language in a subcontract itself or in a separate written agreement. Moreover, courts have even recognized liquidating agreements that contain language from previous/multiple documents executed by the parties at different times. Therefore, provided all the strictly required elements are present, New York courts have allowed for creativity in the drafting of liquidating agreements, so that the subcontractor and the general contractor can tailor a case-specific liquidating agreement to achieve fair and satisfactory results. The liquidating agreement benefits both the subcontractor and general contractor. For the subcontractor, it bridges the “privity gap” and allows the subcontractor to either sue in the name of the general contractor, or creates an obligation of the general contractor to “pass through” the subcontractor’s claim in a lawsuit against the owner. The benefits to a general contractor are also clear. It receives its subcontractor’s release of all claims it may have against the general contractor beyond what the general contractor might collect from the owner on behalf of its subcontractor. Therefore, the liquidating agreement helps to efficiently allocate potential liability, and to avoid the expense and waste of duplicative or inconsistent litigation. G&C Commentary Liquidating agreements are commonly utilized in the construction industry to allocate liability among subcontractors, general contractors and owners, despite a lack of contractual privity among all of the parties. Such agreements are accepted by New York courts and are permitted as a basis for recovery. Unfortunately, we rarely see properly drafted, and thereby enforceable, liquidating agreements in our practice.
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It is prudent for a subcontractor to enter into a liquidating agreement with its general contractor to preserve and enforce its rights against owner-caused impacts, changes or delays. A liquidating agreement gives a subcontractor access to the actual cause of such damages, the owner, which would otherwise be unavailable to the subcontractor. A liquidating agreement could also prevent a potential windfall for an owner. Don’t lose a valuable claim against an owner due to the failure to obtain a liquidating agreement or because of a poorly drafted liquidating agreement.
Mr. Goldberg can be contacted by email hlgoldberg@goldbergconnolly.com or by telephone at 516-764-2800. Jeffrey I. Scott, an associate with Goldberg & Connolly, assisted with the preparation of this article. © Goldberg & Connolly 2014 This article has been prepared for informational purposes only. It is not a substitute for legal advice addressed to particular circumstances. You should not take or refrain from taking any legal action based upon the information contained herein without first seeking professional, individualized counsel based upon your own circumstances. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience. www.goldbergconnolly.com
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STA Subcontractors News
STA Member Profile: United Iron, Inc. BY SAMANTHA SWEENEY, SUBCONTRACTORS TRADE ASSOCIATION
Although STA member United Iron is currently a top steel subcontractor in New York, their work in the trade industry began years ago in Italy, where current owner Randy Rifelli’s grandfather, Guyatano Rifelli, was an ironworker who specialized in custom decorative railings. United Iron, now in its 55th year, has over 50 employees in all five boroughs and has done work on big-name projects like Brooklyn’s Navy Yard and the Museum of Art and Design in Manhattan. The company specializes in the fabrication and erection of structural steel, steel stairs, miscellaneous metals and architectural metals. Randy, who succeeded his father as the head of United Iron, started at a young age in the steel shop and in the field erecting steel up to his graduation with a degree in Civil Engineering from Villanova University in Pennsylvania. He took a job at Chicago Bridge and Iron, building and designing nuclear reactor plants after college, and then went on to work at John T. Brady as a field engineer, working on the JFK Air Mail Facility in New York and the Stamford Town Center Mall in Connecticut. With his engineering experience in hand, Randy returned to United Iron, received his masters in business from Iona College and changed the way the company operated by advancing their technology, job costing and estimating. Randy sits on the STA Board of Directors and has found great value in United Iron’s membership.
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“I found the STA to be a learning facility and that’s when I decided to join-- to this day I still use information I learned from meetings over 30 years ago,” Randy said, citing General Membership Meetings as educational vehicles. He also finds the networking opportunities that the STA provides as a tool to increase United Iron’s business. “You can meet directly with many general contractors, construction managers and even other subcontractors by being part of the STA, that’s been a great opportunity to broaden United Iron’s sales base,” he said. You can contact Randy Rifelli at randyr@unitedironinc.com. United Iron, Inc. 6 Roslyn Place Mount Vernon, NY 10550 T: 914-667-5700 F: 914-667-5925 www.unitedironinc.com
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Fraud Detection/Prevention And Insurance Coverage BY LISA M. RICCIARDI, CPA, CCA, PARTNER, CASTELLANO, KORENBERG & COMPANY
In the present business environment, owners and managers of closely held enterprises have to be both astute at managing day-to-day operations and also acutely aware of the need to safeguard the assets which have already been accumulated. The following data will provide you with some guidance regarding fraud detection/prevention and insurance coverage.
REVIEW OF COMPANY’S INSURANCE COVERAGE In these days of rapidly changing values and increased risks, a periodic insurance review is highly recommended.
EMBEZZLEMENT The typical embezzler is between the ages of 26 and 45, has above average intelligence, and has worked his or her way into responsible positions, making theft easier.
Property and Casualty Insurance 1. Liability • Are the policy limits high enough to cover the company’s exposure and protect its assets? • Are key employees included as additional named insureds? 2. Property • Should any exposures be self-insured? • Do actual property values greatly exceed the insured values? 3. Automobile • Are the policy limits high enough? Should an excess liability policy be purchased? • Are the deductibles for collision and comprehensive coverage realistic? 4. Fidelity • Is there sufficient protection against employee dishonesty?
Weaknesses in internal controls of a company can help embezzlers flourish. The weaknesses include failure to segregate jobs, inadequate recordkeeping, and no performance reviews of the employee. The following are some danger signs of embezzlement: • Unusual rise in accounts receivable write-offs. • Unexplained differences between physical inventory counts and inventory records. • Missing files. Weaknesses in Controls Some of the most commonly overlooked weaknesses that make embezzlement easier for the dishonest employee are as follows: • Checks received in the mail go directly to the person who records, posts them and prepares the deposits, with no independent record being made of the receipts. • Bank statements go directly to the person who reconciles them.
The following checklist may help you identify areas of vulnerability in your company’s insurance coverage.
Employee Benefits Plans 1. Major Medical • Are the maximum benefits sufficient to take care of catastrophic illnesses? • Are premiums being paid on employees who are no longer with the company? 2. Salary Continuation (Sick Pay) • Are the plan benefits realistic? • Does the plan include employees whom the continued on page 18
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continued from page 16 company would rather not cover? 3. Life Insurance • Are the benefits commensurate with responsibility and authority? • Does the company have insurance on key employees? We have attached a embezzlement methods.
list
of
some
common
Castellano, Korenberg & Co., CPA’s will be pleased to discuss any questions you may have regarding the safeguarding of your assets. SOME COMMON METHODS OF EMBEZZLEMENT A. Misappropriation of Cash Receipts Cash sales Covered by: 1. Not recording sales; destruction or omission of sales slips. 2. Tampering with cash register tapes; understating footings of cash sales reports. Collections on accounts and notes receivable Covered by: 1. Lapping 2. Kiting, or inter-bank check transfers. 3. Entry in customer’s accounts only, concealed by: • Over-footing of cash receipts book and tampering with adding machine tapes. • Tampering with bank statements, pass books, and customers’ statements.
excess pocketed or split with creditor. C. Securities • Unrecorded illegitimate sale, or hypothecation for speculation. • Utilizing securities of one company as cover for appropriation of securities of another, by officer or both. D. Merchandise llegitimate removal of merchandise. Covered by: 1. Overstatement of lists of physical inventory. 2. Unauthorized requisitions. 3. Entry only in stock records of fictitious purchase returns. Reporting as received, items not received (usually associated with collusion between the creditor and the receiving clerk) E. Miscellaneous • Undercharging customer. • Allowing officer or employee free services or merchandise, or at reduced rate, when not entitled thereto.
B. Misappropriation of Disbursements Cash on hand Covered by: 1. Cashing vouchers a second time. 2. Raising amounts on legitimate vouchers.
About Castellano, Korenberg & Co., CPAs, P.C. Castellano, Korenberg & Co. is a full-service accounting firm providing audit, accounting and tax services to privately held clients throughout the New York metropolitan area. The firm’s clientele includes individuals and companies spanning various industries including construction, manufacturing, distribution and real estate. Castellano, Korenberg & Co. has built a reputation for delivering professional expertise and personal attention to every client. The firm’s experienced professionals have provided timely and intelligent solutions based in their comprehensive financial and industry-specific knowledge since 1991. For more information, visit www.castellanokorenberg.com.
Cash with banks Covered by: 1. Fictitious creditors’ invoices (checks cashed through petty cash, secret or falsely named bank accounts, or forged endorsements). 2. Increasing amounts on creditor’s invoices; refund of
Lisa Ricciardi, CPA, CCA Partner Castellano, Korenberg & Company 313 West Old Country Road, Hicksville, NY 11801 Tel: 516-937-9500 http://www.castellanokorenberg.com/index.html
Receipts of miscellaneous income and credits Covered by: 1. Not recording. 2. Recording as exchange item.
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See the Captain for the Last Time at Yankee Stadium with the STA Discount Code! The Subcontractors Trade Association (STA) and the New York Yankees have partnered to offer STA members discounted home game tickets at Yankee Stadium for the remainder of the 2014 season. Tickets will be available at 10%, 25% and 50% off for select games. To search for tickets, please CLICK HERE and enter the special promotional code STA when prompted.
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Take advantage of this offer to see five-time World Series Champion and 14-time American League All Star Derek Jeter before he retires! If you have any questions or comments, please contact Samantha Sweeney at ssweeney@stanyc.com or (212) 398-6220.
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Subcontractors Trade Association 1430 Broadway Suite 1600 New York, NY 10018 T: 212.398.6220 F: 212.398.6224 e-mail: info@stanyc.com website: www.stanyc.com
Active Past Presidents Greg S. Fricke, Jr. Leonard Powers, Inc. Jerry Liss A. Liss & Co. Inc. Alan Nathanson (Honorary) Forsythe Plumbing & Heating Corp.
Officers Robert J. Ansbro, President The New York Roofing Company
Lawrence Roman WDF, Inc. Arthur Rubinstein Skyline Steel Corp.
Christine Boccia JD Traditional Industries
Randy Rifelli United Iron, Inc.
Dan J. DeVita Penava Mechanical Corp.
Guy VandeVaarst Five Star Electric Corp. (no longer at Empire System Solutions)
John Dierks Dierks Heating Company, Inc Andrew Drazic ATJ Electrical Brent Fleisher Environet Systems
Robert Samela A.C. Associates
James Flynn Independent Temperature Control
Gary Segal (Honorary) Five Star Electric Corp.
Patrick Gallagher BP Mechanical Corp.
Lawrence Weiss A.J. McNulty & Co., Inc.
Stephen Gianotti Arcadia Electrical Co., Inc.
John A. Finamore Treasurer Jordan Panel Systems
Scott Rives Woodworks Construction Co, Inc.
Sandra Milad Gibson Milad Contracting Corporation
Joseph Leo Secretary Atlantic Contracting & Specialties, LLC
Board of Directors Joseph Azara Jr. C.D.E. Air Conditioning
Robert Weiss 1st Vice President A.J. McNulty & Co. Inc. Peter Cafiero 2nd Vice President Island Painting
Craig Gilston Gilston Electrical Contracting
John Villafane Eldor Electric Upcoming Events Executive Committee Meeting Thursday, September 4 8:30AM Board Meeting Tuesday, September 9 5:30PM General Membership Meeting Wednesday, October 1 5:30PM
O U R M I S S I O N S TAT E M E N T trengthen New York’s construction industry each member firms to increase business opportunities dvocate to preserve subcontractors’ rights
Gloria Kemper Recon Construction Corp.
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For more than 30 years, Grassi & Co.’s Construction Practice has been assisting contractors, engineers, suppliers and distributors minimize their tax liability, uncover potential savings, and build a successful future. Manhattan 212-661-6166
Long Island
516-256-3500
www.grassicpas.com