Construction Defects in New York; Part 4 of 6 – Improper Materials

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).

Even where designs are to the correct level of competency and the construction has been performed with due diligence and care, problems may still arise on a project.

As is true with other types of construction defects, disputes as to the performance of materials selected for the project will invariably result in finger pointing between the architect or engineer who specified the material, the supplier who supplied the material and even the laborers who installed the material.

Having defective or improper materials installed can result in the construction being non-conforming (or unacceptable) to the owner. Defective or improper materials can create issues as minor as a correctible cosmetic flaw, to as large as the structure not being usable for its intended purpose.

Should a supplier provide defective materials to the subcontractor, the supplier may be found responsible for any damages alleged against the subcontractor as a result of the defective material.[1]

Where defective materials have been installed in a project, the proper measure of damages to the owner is equal to the cost of repairing or replacing the defective goods and any damages due to breach of warranty on the goods.[2]

The exception to this rule, however, is where the cost of performing the corrective work greatly exceeds the value to be attained. In such a case the measure of damages available is the difference in value, where materials were improperly substituted, but were of like quality and make no appreciable difference in the value of the work.[3]

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Contractors may be wise in seeking the inclusion of a disclaimer in its contract with the owner, whereby contractor would be absolved of any liability for defects relating to the use of the owner’s specified materials.

When dealing with issues around improper materials, an immediate fix may be necessary. If you decide to look into making immediate repairs or if you have already repaired your construction defect, you need to track all steps in this process, as these documents may become critical in a claim.

Keep a copy of all contracts or statements of work. If you have any correspondence with the builder, the developer, architect, contractor, or any other building professional, you need to document them and/or keep a copy of the emails, faxes and letters. If possible, it would be prudent to take before and after photos as well.

Your comments and article topic suggestions are invited in the comment field below.

John Caravella, construction lawyer

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: or (631) 608-1346.

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[1] Community Steele Corp. v. Terra Marine Dredging Corp., 176 A.D.2d 1196.

[2] Mayfair Kitchen Center, Inc., v. Nigro, 139 A.D.2d 885.

[3] Jacob & Youngs v. Kent, 230 N.Y. 239, 244.

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