Defects exist throughout all construction projects and it’s likely no construction project is ever completed perfectly. In New York construction however, perfection is not the legal standard by which construction is generally measured. The standard used to judge completed construction is the ordinary and reasonable skill that is usually exercised by architects, engineers, contractors and others in that work.Therefore, not all defects are necessarily actionable under New York construction law.
However, various types of defects are recognized under New York construction law. Each of these are separately defined and are resolved by the courts by varying methods. In this series of articles, on New York construction defects, each recognized defect and the methods used to address these by the courts will be explained. These include design defects (part 2), defective construction (part 3), improper materials (part 4), improper installations (part 5) and finally time limitations, which apply to seeking legal action for defective construction in New York (part 6).
To start, a determination of the type of defect involved is necessary in determining which party (or parties) may ultimately be responsible for the defect. Ultimate responsibility could rest with the owner, the architect, the engineer, the contractor (and its subcontractors), suppliers or others. And rarely do any of the parties admit fault with any of their own work. If the owner blames its contractor for faulty work, the contractor will likely point blame in the direction of the architect or engineer, and so on.
Generally, a design professional (architect or engineer) will not be liable to the owner for construction defects, and likewise, the contractor will not be responsible to the owner for design defects.
Defects do not necessarily make themselves visible in the same way, as not all construction defects are open, obvious, and prompt in their appearance. A latent construction defect may be concealed and hidden from inspection. A patent defect, however, is one that is open and obvious. Therefore defective construction could contain variations of latent design defects and patent construction defects.
Additional information relating to the important factors latent design defects play on the overall lifecycle of a building can be found in an excellent paper written by Wai-Kiong Chong, M.A.SCE and Sui-Pheng Low, Latent Building Defects: Causes and Design Strategies to Prevent Them.
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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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 Major v. Leary, 241 A.D. 606, 268 N.Y.S. 413 (2d Dep’t 1934).
 MacKnight Flintic Stone Co. v. City of New York
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.