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Nell M. Hurley

Of Counsel

(585) 473-3100 (Ext. 180)

Nell M. Hurley, Of Counsel, maintains a construction, surety and fidelity law practice representing contractors, owners, construction managers, sureties and fidelity insurers. Her practice includes all aspects of contract review and negotiation, all phases of state and federal court litigation, including analysis of claims, preparation of pleadings, document discovery and depositions, motions, settlement negotiations, trial preparation and appeals, and alternative dispute resolution including arbitration and mediation.

Substantive areas of interest and experience for Nell include bid protests, Labor Law and prevailing wage, performance and payment bond claims and defaults, liquidated damages and no damages for delay clauses, limitations defenses, breach of warranty/guaranty, termination, acceleration, change orders and extra work, indemnification, mechanic’s liens and statutory trust funds, as well as coverage and indemnification matters related to fidelity bonds, including employee dishonesty claims.

Nell was senior attorney on a 40 million dollar dispute with the New York State Power Authority involving construction of a hydroelectric power plant near Albany, New York; litigated a 2 million dollar case in Federal Court concerning a wastewater treatment facility in Dutchess County, New York; prepared and argued appeals involving enforcement of a public owner’s contract disclaimer clauses on a road construction project; acted as senior attorney in multi-party litigation in Buffalo, New York involving performance and payment bond claims and default by a contractor; arbitrated disputes against municipalities concerning change orders and extra work on a highway construction project; handled bid mistake/protest litigation, prevailing wage cases, mechanic’s lien matters, both public and private, and has successfully managed and defended claims against fidelity insurers involving coverage disputes.

Nell Hurley completed trial advocacy training through N.I.T.A. (National Institute of Trial Advocacy).

Nell is an experienced advisor, litigator and negotiator in all types of construction and surety disputes and risk management situations. Ms. Hurley also writes and edits articles on cases, topics and trends significant to construction and surety professionals and businesses, including Ernstrom & Dreste, LLP’s quarterly newsletters, Construction Risk Management Reporter ContrACT and Fidelity & Surety Reporter available on this website or by request.

Practice Areas:

  • Construction Law, Construction Contracts, Construction Claims
  • Commercial Litigation
  • Surety Law, including Payment and Performance Bonds
  • Lien Law, including Construction Liens
  • Fidelity Law

Court Admissions:

  • New York State Courts, 1985
  • U.S. District Court for the Western District of New York, 1985
  • U.S. Bankruptcy Court for the Western District of New York, 1986


  • Miller Act Payment Bond: Federal Court Holds No-Damage-for-Delay Clause Unenforceable Against Subcontractor.” Surety Bond Quarterly, vol.6, no. 3, Fall 2019, pp. 10 – 11.
  • Design-Build Risks”, Chapter 2, Design-Build Risk and Insurance (Third Ed.), International Risk Management Institute, Inc., 2013, Co-Author.
  • ConsensusDocs 310: Green Building Addendum”, Chapter 5, ConsensusDocs Contract Documents Handbook, Aspen Publishers, 2012, Author.

Noteworthy Cases:

  • Costanza Const. Corp. v. City of Rochester, 147 A.D.2d 929, 537 N.Y.S.2d 394 (4th Dept. 1989).

Speaking Engagements

  • Strategies for Getting Paid,” Associated Builders and Contractors, Inc., Empire State Chapter, May 1992.

Professional Associations:

  • American Bar Association: Tort, Trial & Insurance Practice Section, Fidelity and Surety Law Committee