Architects in New York can be found liable for damages in various situations, depending on who claims damage, and the basis of the claim itself. For example, where an owner has a direct contract with the architect, the owner could bring forth a simple claim based on the contract or a claim based on a tort action. Such a tort action, based on negligence, is a claim for malpractice.
Below are the top five avenues of architect liability in New York:
1. Contract Claims
Typical contract-based claims against an architect include failure to complete projects on time, work performed improperly under the architect’s direction, leaking roofs and shrinking woodwork. In the absence of any express language specifying the standard for the architect’s performance in a breach of contract claim, the courts apply a negligence standard. In a negligence standard claim, it must be shown that the architect failed to perform in accordance with the standard of professional care usually exercised by such professionals in the community.
2. Warranty Claims
New York does not provide a cause of action against architects for breach of an implied warranty. Nor does the work of an architect constitute a product for which strict liability claims could exist. The architect may, however, enter into a contract with terms that provide for the architect’s liability if the architect fails to produce specific results as guaranteed in the contract, even if the architect otherwise conforms to the community standard of performance.
3. Design Liability
New York State law has established that an architect’s work will be judged by the standard of ordinary and reasonable skill usually exercised by a licensed professional unless the parties state otherwise in their contracts.
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, an 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 and a defect therein causes damage to the owner. (1)
4. Supervision and Inspection
If an architect assumes responsibility for performing site supervision and inspection, he/she is bound to use due care in the performance of such duties. The primary purpose of the inspection requirement is to make it a contractual obligation for the architect to provide the owner with assurances that the work is being completed in conformance with plans and specifications. However, as elaborated in case law from 1866, “the architect must be diligent in inspecting and supervising the work, but is not obligated to discover every defect in a contractor’s or subcontractor’s work and will not be liable for defects so long as they are not attributable to carelessness, negligence, or inattention on the architect’s part.”
Regardless of limitations over means and methods as stated above, failure of the architect to abide by the contract terms of inspection can result in the architect ultimately being liable to the owner. If it can be established that the architect breached this obligation, and this breach was the “proximate cause” of a failure to discover a defect, the architect may be liable to the owner for the cost incurred in correcting the defect.
5. Certification of Progress Payments
Courts in New York recognize the numerous responsibilities owners look to architects to perform. Just as courts recognize that owners may rely on architects for inspections of work, they also recognize that owners look to architects for certification of progress payments. Should an architect improperly approve a progress payment, or prematurely release retainage, the architect may be liable to the owner for any damages suffered, as this may decrease the contractor’s incentive to complete the work. Your comments are invited in the field below.
The author, John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608-1346.
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(1) Italian Economic Corp. v. Community Engineers, Inc., 135 Misc.2d 209 (1987)
