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).

For a defect to be construction based, it can range in scope from a contractors failure to perform to completion of the project, to gross deviations from the approved construction plans and specifications.

The existence of a defect alone, however, does not necessarily mean it is the contractor who is to blame. After all, the contractor is only responsible for satisfying its performance of the construction contract. However, should the contractor have any reason to suspect there is defect in the design of the project, the contractor has a duty to point these out to the owner or designer.[1] This duty to call out such observations was established in New York in the matter of Caceci v. DiCanio Const. Corp. 72 N.Y.2d 52, 530 N.Y.S.2d 771, 526 N.E.2d 266 (1988). Although the plans and specifications of this project did not call for any additional foundation work, the soil at the site was comprised of large amounts of organic materials, including trees, which made it incumbent upon the contractor to point this deficiency out. The contractor’s failure to do so resulted in substantial liability.

The work performed by a contractor in New York is judged to the legal standard of the community, unless the contract itself provides for some other higher standard to be applied. The failure of the contractor to complete the work may not prevent the contractor from earning payment of the contract work, less any additional costs to correct and complete the work.[2]

Typically for defective construction it is the property owner who files suit against the contractor for the defects, although it may be possible for a contractor to be sued by a third person should they be injured on the property as a result of the defect.[3] Further, an owner may also bring suit against the subcontractor who performed the defective work, despite not having any contract connection with the subcontractor.[4]

That is not to say, however, that design professionals are off the hook with respect to liability for defective construction. Should the design professional have the additional responsibilities of supervision of the work in addition to its design work, where a failure to supervise can be established as the cause of the defective construction, the design professional will be held liable for the resulting construction defect.[5]

In New York construction litigation, it is the party seeking legal assistance in remedying the construction defects who bears the burden of establishing that the problems are due to faulty construction. Typically this is done through the use of qualified engineering inspections and reports. Only after properly researching and documenting the cause of the problem can any subsequent attempts at correcting the problem be expected to work.

Where the defects to the construction are reasonably repairable, the valuation used by courts in New York is to award in damages the market price of the completing or correcting work required.[6]Where a defect to construction is not reasonably repairable, even to render the building unusable, the measure of damages is still the market valuation of the correcting and completing the work required, not the loss in market value of the property.

When discussing defective construction it is likely that water intrusion will be part of the symptoms being shown. No discussion of construction defects would be complete without mention as to the dangers of mold. An in-depth examination of mold, and the dangers it presents, can be found in: GUIDANCE FOR BUILDING OWNERS, CONSTRUCTION CONTRACTORS AND OTHER PARTIES TO THE CONSTRUCTION PROCESS.

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