Construction Disputes

There are many reasons why construction disputes arise. They may come up because of disputes about fees, negligence by one or more contractors or other parties, change order issues, changes to scope at a construction site, and mechanics’ liens, among other issues. New York construction litigation lawyer Stewart A. McMillan has more than 15 years of experience representing various parties in construction disputes, including design professionals, subcontractors, contractors, and owners.

Many construction disputes hinge on one or more breaches of a contract. For a contract to exist, there needs to be an offer, acceptance, consideration, mutual assent, and the intent to be bound. There needs to be an objective meeting of the minds that is enough to give rise to a binding, enforceable contract.

If a breach of a contract is material, a non-breaching party can stop performing under the contract and sue to collect damages caused by the breach. The contract can still be completed. The non-breaching party remains obligated to complete performance under the agreement and is entitled to sue for damages. For a breach of a contract to be material, it needs to go to the root of the agreement between the parties. Courts will look at the extent to which a non-breaching party will be prejudiced or damaged by a lack of full performance. A party’s obligation to perform under a contract is excused only if the other party’s breach of the contract is substantial, such that it ruins the purpose of the parties in entering into the contract. Whether a certain set of facts makes up a material breach is a legal question that a construction litigation attorney in New York can analyze.

Builders are obligated to tell buyers in New York about material or design defects discovered while they were in the process of construction. Moreover, defects may be found by the building department of a municipality. Dangerous conditions or non-compliance with minimum building standards may also be uncovered during a walk-through prior to the buyer closing. Sometimes buyers negotiate inspection provisions for their purchase and sale contract to look into whether there are construction defects. However, sometimes defects show up only after a homebuyer starts living in a residential structure, and it is not certain when the defect first arose for the purpose of the statute of limitations.

The statute of limitations for a breach of a contract is usually six years. When materials are defective, there may be a four-year statute of limitations. Developers of buildings that are at most five stories need to provide warranties to cover various elements of construction for one, two, or six years, depending on the kind of defect. Generally, construction defects are considered to have accrued when construction gets to a stage of substantial completion, but for latent defects, it may be possible to make a claim beyond the usual statute of limitations. It is important to consult an experienced New York construction litigation attorney about your specific situation.

In New York, mechanic’s liens are liens filed on private property or related to a public project. When a mechanic’s lien in New York is filed with respect to work that was performed on privately owned property, including residential and commercial property, it encumbers and attaches to the fee simple ownership of the property in the same manner as a mortgage. If you are doing construction work in New York State, and you need to file a mechanic’s lien, a range of details need to be addressed. For example, while you will not need to provide the property owner with any notice before you file a mechanic’s lien, regardless of whether the project is residential or commercial, you will need to serve a copy of the lien on the owner five days before filing the lien or within 30 days of filing the lien. A copy of the mechanic’s lien also needs to be served on the owner within 35 days of the lien.

Stewart A. McMillan has decades of trial experience. If you are faced with a construction dispute in New York, you should consult our firm. We represent clients in New York City and in Westchester, Orange, Rockland, Putnam, and Dutchess Counties. Call us at 914-358-4326 or complete our online form.