This is a continuing article series on Construction Defects in New York, These include an introduction (part 1), design defects (part 2), defective construction (part 3), improper materials (part 4), improper installations (part 5) and finally important time limitations which apply to seeking legal action for defective construction in New York (part 6).

Defects in construction design demonstrate themselves in various and wide-ranging ways, and sometimes by the actions the defects cause others to do.

For example, people commonly falling on stairs may suggest something improper with the design of the staircase. A visible sagging or bowing of a structural member would suggest something improper in its design or selection by the engineer. Further, reports of people repeatedly slipping on ice can indicate an improper condition with drainage design.

Design based liability only arises generally where the design professional (architect or engineer) failed to perform in accord with the standard of care typically exercised by similar professionals in the community.[1] Generally, if it can be determined that the defect is based in the design, the general contractor will not be liable for a design defect.[2] All responsibility relating to a design issue, therefore, rests solely with the design professional who rendered the design, as a contractor cannot be liable to an owner for the failure of a design element it had no part in.[3]

The effects and ramifications to design professionals of defective construction designs is a contributing factor to malpractice insurance rates and causes significant risks to the design professionals as outlined in New York Needs Statute of Repose.

Typically, the property owner is best served obtaining an indpendent engineering evaluation with a written report documenting the problematic condition, documenting the appropriate repair action(s) to be taken and to provide re-inspection of any corrective work performed by the builder.

A property owner in New York faced with design defects is entitled to be placed in as good a position as they would have been had the design contract been properly performed.[4] This provides for damages that range in proportion to the extent of the defect, such as remedial correction costs, the lost market value of the property as a result of the defect, or the cost of total reconstruction if the defect renders the property unusable.

The more complex and unusual the architect’s design, the more latitude an architect is allowed. This latitude however can be quite narrow. For example, one architect was found liable for damages to the owner for roof repairs, not because the roof was installed incorrectly, but because the design of the roof caused owner significantly increased maintenance and repair costs.

Design liability may also rest with the architect for items that are actually beyond the design of the architect. New York courts have held that an architect will be liable to the owner for any damages incurred as a result of the architect’s approval of engineering drawings where a defect therein causes damage to the owner.

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