Construction Law Blog

Are We On The Same Page? How Construction Document Conflicts Are Resolved

     Given the large number and variety of documents required to administer a construction project today (plans, specifications, contracts, etc.), the likelihood of discrepancies arising between these different sources is almost unavoidable.

     Do you know how these documents rate in terms of their authority?

     A clear understanding of which document is “controlling” is critical to resolving discrepancies in the event of a legal conflict. The following is a brief refresher on the analysis made by the courts in New York.

     In cases where numerous documents are executed together, by the same parties, to govern the same subject matter, all documents are considered contemporaneous and will be read together in their entirety.

     However, when inconsistencies are found among these documents, New York courts will apply the following logic to determine the controlling terms:

     Any specific document or specific language is controlling over a general document or general language. For example, if a transaction is governed by two documents, one being a standardized contract and the other being specifically drafted for the transaction, conflicts will be controlled by the specifically drafted document over the general document.

     Similarly, conflicts between plans and specifications are resolved under the general rule that specifications exhibit control over plans, as per New York case law from 1954. However, certain types of specifications, such as “Additional conditions” or “standard specifications applicable to all contracts” are excluded from this rule and are not deemed controlling when in conflict with the plans. In such cases the plans (as prepared specifically for the specific construction project) are determined to be the controlling documents.

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. 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 (516)462-7051

 

 

This is a general information article and should not be construed as legal advice or a legal opinion.  Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.
 

 

 

 

What About the Neighbors? How Contractor Liability Can Extend to Neighbors

     Are contractors responsible for the impacts of their work on neighboring residents? Oftentimes, they are. This is especially true in densely populated urban areas where literally hundreds of people could be affected by a project only fifty feet away. Some of the principles in these cases are outlined below.

     Excavation activities are often the cause of damage to neighboring structures. New York courts have recognized this principle since the matter of Knapp v. Cirillo (1954). In this case, it was held that those who excavate upon their own land are not responsible for damage to structures located on neighboring properties, so long as the excavations are done with ordinary care

     However, New York City limited this rationale to excavations planned for ten feet deep or less. Where excavations are planned for ten feet or more in depth, additional requirements and responsibilities are placed upon the contractor. Under this code, it is the contractor’s responsibility to protect neighboring buildings if the excavator is given license by its neighbors to enter and inspect adjoining buildings and perform the work necessary to protect them.

     If a neighbor refuses to provide access to the excavator to perform necessary inspections and work, the burden of protecting this neighboring property shifts under the law back to that of the neighboring property owner.

     The above rule for excavation does not actually apply to the ground itself. If the lateral support to a neighboring building should be compromised or removed, the person responsible is liable for damages to the ground, which could leave the contractor liable for either the cost of restoring the land, or the land’s diminished market value, whichever is less. These responsibilities are in addition to other continuing duties imposed on contractors, including those by code and to not damage or negatively affect adjoining properties.

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. 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 (516)462-7051

 

 

This is a general information article and should not be construed as legal advice or a legal opinion.  Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.

Top 5 Contractor Defenses in New York

Contractors are not only responsible for performing their contracted work, but are also charged with keeping the owner and the subcontractors working together to bring the project to completion successfully. Given this, they are regularly the subject of legal disputes. For this reason, many contractors could benefit from an understanding of the following top 5 defenses available to contractors in New York.

• SUBSTANTIAL PERFORMANCE -  If a court finds that, at the time of contractor's termination that the owner essentially received the work bargained for, then the contractor has “substantially performed” the contracted work,  despite any percentage of work claimed incomplete or number of defects. If the contract has been substantially performed, then the contractor would be entitled to the contract price, plus any extras, less the cost of repairing or correcting any defects.
  
  
• INTERFERENCE -  Although the contractor must work with and accommodate the reasonable requests of the owner or architect on the project, what happens if this level of input rises to a level which inhibits the contractor's ability to work? It is not always clear exactly when this level of interference is reached. But, typically, where an owner has impeded the contractor's ability, the contractor will not be blamed for the delay caused by the owner’s interference. Some levels of interference may even justify the contractor's termination of the contract. This may vary from project to project, given the level of owner interference determined to justify the contractor in terminating the agreement.
  
  
• IMPOSSIBILITY / FORCE MAJEURE -  Impossibility is a legal theory that would provide a possible defense to a contractor for failure to perform under the contract. This protection exists where the contract is truly rendered impossible to perform. The courts have established, however, that this does not include relief for a contractor seeking to escape performance for a difficult or unprofitable project.
  
  Similar to Impossibility, Force Majeure excuses performance where reasonable expectations of the parties have been frustrated due to circumstance beyond the parties' control. It should also be noted that a party running into financial hardship does not amount to grounds for non-performance of the contract.

• NON-PAYMENT- Although logic might suggest that if the contractor is not being paid, the contractor can cease working under the contract. In New York, however, that may not necessarily be the case. If an owner fails to make timely progress payments, the contractor may consider the contract terminated by the owner and seek damages. A dispute resolution clause in the contract, however, may obligate the contractor to continued performance while the dispute is being administered. Simply ceasing to work under these conditions could amount to the contractor being liable to the owner.
  
  
• WRONGFUL TERMINATION-  When an owner wrongfully terminates a contractor, this serves as a defense to any claims by the owner seeking damages from contractor or contractor's surety for excess costs to complete. A contractor terminated wrongfully is entitled to its lost profits, value of work performed and start-up expenses. Should the contractor wrongfully terminate its contract or otherwise abandon the job, the contractor loses its right to claim lost profits and the owner is entitled to claim its costs to complete.

     Contractors in New York are provided the above, and other possible defenses to claims made against them. Whether any of the above or other defenses may apply to your situation will vary from project to project and may depend on underlying facts.

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. 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 (516)462-7051

 

 

This is a general information article and should not be construed as legal advice or a legal opinion.  Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.

Green Construction Sustainable Cocktails Event

The U.S Green Building Council – Long Island Chapter, will be hosting another after work cocktail hour for members of the Long Island construction community on June 28.

With membership to the Chapter, admission is free. Guests are charged $20, which also includes hors d’oeuvres. Anyone with an interest in connecting with the green construction movement on Long Island is invited to attend this event.

This event is open to members of the Long Island Construction Community who are interested in getting to know each other and for non-members to get acquainted with the Long Island Chapter, and its members.

Past events have been sucessful gatherings for the different committee members of the Long Island Chapter to speak face to face, and also for meeting and speaking with members of the Long Island Construction Community.

If you have been curious about learning more about the USGBC-LI, or the Green Construction movement, you are encouraged to come join us for this informal cocktail hour.

For further information visit this Sustainable Cocktails link

 

Should Architects Be Exempt From Continuing Education?

            The New York Education Department, Office of the Professions, regulates the licensing of the various professions, such as Lawyers, Certified Public Accountants, Architects, and other professions practicing within the state. Typically these professionals must pass initial education and examination requirements, and are also required to maintain certain levels of continuing education units. These requirements are intended to foster continued education and training throughout their career. These professionals are encouraged to view their commitment to education as an ongoing one, and serves to keep the professionals updated as to new developments in their field. Additionally professionals are also provided training on various ethical issues that the professional may expect to be faced with in their work.

            But the New York State Legislature is currently considering removing these education requirements for architects. Current Bill A02318, seeks to repeal section 7308 of the Education Law, which made continuing education mandatory for architects.

            The stated justification for this legislation is that mandatory education requirements for architects are flawed for several reasons. First, this requirement is claimed to be based upon the false presumption or stereotype that all architects will be able to afford these education classes. Secondly it is argued that the lack of specific direction as to what classes should be taken demonstrates that the profession has no specific deficiency of knowledge identified; and lastly this repeal is also brought forward based on architects already undergoing extensive education and on the job training.

            With the overriding public policy considerations of safety to the public when dealing with the design and construction of complex structures, is requiring CLE for architects really that unreasonable of a request? The reasons stated as justifications for this bill can also equally apply to other professions as well. Does this mean that we should also be releasing attorneys from the requirements of CLE? If CLE’s are removed, what about the training to appropriately handle the various ethical issues which arise?

            What are your thoughts on this repeal? Will this lead to a lowering of the bar across various professions in New York? Please share your comment 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. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached via email John@LIConstructionLaw.com or (516) 462 – 7051.

 

 

This is a general information article and should not be construed as legal advice or a legal opinion.  Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.