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Jessica L. Rothman
Tara B. Mulrooney
Ingram Yuzek Gainen Carroll & Bertolotti, LLP
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If You Build It:
News for Design & Construction Professionals

Second Circuit Deems Architect’s Elevations And Sketches Not “Protectable” Under Copyright Law

Published by ​Robert A. Banner, Esq. on June 18, 2014

Last week, the Second Circuit Court of Appeals, which has jurisdiction over cases in the New York area, handed down a significant case regarding the elements of an architect’s design that are entitled to copyright protection.  In Zalewski v. Cicero Builder Dev. Inc., 12-3448-CV, 2014 WL 2521388 (2d Cir. June 5, 2014) the appellate court affirmed a Northern District Court’s decision granting summary judgment to builders who were alleged to have infringed an architect’s copyright.   The Second Circuit held that although the architect had obtained a valid copyright and although the builder copied the architect’s work, the copying was of “unprotected” elements of the architect’s work.  Therefore, the copying was not wrongful and the builder was entitled to summary judgment against the architect.

In this situation the Architect’s plans, which can be viewed in an exhibit to an affirmation filed in the litigation, consisted of very basic elevations and very basic floor plans for colonial homes.  The Court found that most of the similarities between the architect’s designs and the builders’ copied designs are features of all colonial homes.  The Court reasoned that the architect’s original contribution was very slight and that although the design was copied (but not exactly copied) the builder shared plaintiff’s general style but took nothing from his original expression.  “Plaintiff can get no credit for putting a closet in every bedroom, a fireplace in the middle of an exterior wall and kitchen counters against the kitchen walls.”  “The overall foot print of the house” and the size of the rooms are “design parameters dictated by consumer preferences and the lot the house will occupy, not the architect.”

The Zalewski case is a significant federal court decision interpreting the rights of architects in the New York area.  While the drawings here led the court to reach what is quite possibly the correct result, the language of the Court about what constitutes protectable design could easily be applied in a manner to undercut the level of copyright protection an architect should expect.  The decision does offer some clues as to how an architect should create the requisite level of originality to maximize the chance that what happened to Zalewski does not happen to it.

The Building Next Door

Published by ​Melissa T. Billig on May 01, 2014

Development is booming in New York. But as construction picks up, so does the potential for adjacent construction issues.

In a recent article, The Building Next Door: Establishing Good Relations Between Neighbors, published in the New York Real Estate Journal, Melissa Billig provides 10 key considerations for builders and adjacent homeowners for establishing good relations and avoiding conflict.  By outlining the scope and schedule of projects and the rights and expectations of both parties from the get-go, builders and adjacent homeowners can mitigate problems and sooner enjoy the rising property values and community renewal that comes with successful development.

If you have questions about adjacent construction issues, feel free to .(JavaScript must be enabled to view this email address).

What to Expect When You’re Renovating: Devils & Dreams In the Details

Published by ​Melissa T. Billig on February 07, 2014

Homeowners contemplating a significant renovation are faced with critical issues.  Long before the really tough decisions—hardwood or tile, granite or marble, soaking tub or walk-in closet—owners need to select an architect and general contractor, acquire necessary permits and permissions from the municipality and the neighbors, and structure agreements with everyone and their second cousin.  Yes, agreements matter and perhaps none more so than contracts between the owner and the architect and contractor.

In a recent presentation at the Center for Architecture Foundation, Melissa Billig provided homeowners with a ‘top 10 terms” to include in these critical agreements. In addition to setting the basic terms of the project—scope of services, project timeline and payment—Melissa emphasized that each contract should also address the potential for problems—for example, indemnification, how disputes will be resolved and what will happen in the event of termination.  Most important, each contract should outline the responsibilities of each the homeowner and the architect or contractor.  As with any design and construction project, success depends on each party upholding its responsibilities. In this respect, working with an attorney to draft thoughtful contracts will help homeowners know what to expect when renovating.

Melissa Billig will next present on “What to Expect When You’re Renovating” at the Center for Architecture Foundation on Thursday, April 3, from 6-8pm.  To attend, register here.

Clarity Counts: Ingram Presents at the 2013 ASCE Annual Conference

Published by Sean Scuderi on December 13, 2013

In any business, agreeing on terms and allocating risk from the outset is critical to success. In the design and construction industry, the stakes are even higher. Defining an engineer’s or architect’s scope of work in a clear and definitive manner prior to starting a project—including setting limits to, or fixing the tolerance for, changes that may be encountered on a project—has both economic and legal benefits. Clear contractual terms can maximize profits by minimizing the time engineers and architects spend performing uncompensated work. They also reduce exposure to claims for services that the designer professionals were never required to provide.

In a presentation at the ASCE Annual Conference in October, Ingram Yuzek’s Sean Scuderi emphasized the importance of understanding the scope of work and standards of care governing individual projects. He also provided the audience with key insights to more effectively negotiate these contractual terms. In particular, he pointed out that engineers and architects should be especially attentive to clients’ use of trigger words such as “expert,” “highest standard,” or “insures,” which language can significantly increase liability and exposure.

In the Design and Construction industry, risk is associated with every project. It is imperative that the What, When, Who and How of services and deliverables is defined from the start.

Ethics by Design: Ethical Considerations in Engineering

Published by Tara Mulrooney on October 09, 2013

Balancing the desire to do what is right, profitable and necessary often involves as many ethical questions as legal ones. For the design industry in particular, where nearly every business decision touches upon issues of public safety, ethical issues are even more high-stakes. Indeed, ethical issues often arise at the intersection of cost, client needs and safety considerations. And business ethics also comes into play; issues between and among project participants-engineers, contractors, owners and design professionals-and certification concerns such as the proper use of an engineer’s seal. Conflicts of interest are another area rife with ethical considerations, such as whether the acceptance of a gift can influence an engineer’s independent professional judgment, or whether certain fees or budgets are too low to properly address life safety concerns. At the end of the day, every ethical challenge must be viewed through the lens of protection; that is, design professionals must first work to protect public health, safety and welfare.

The National Society of Professional Engineers authors the primary source of guidance through its Code of Ethics for Engineers. Pursuant to the Code, Engineers must perform their services under a standard of professional care that requires adherence to the highest principles of honesty, impartiality, fairness and equity. Engineers should be familiar with, and regularly consult, all provisions of the Code. Examples of such issues directly covered by the Code include-when an engineer has a responsibility to report non-compliance by a contractor, and when it is proper for an engineer to replace another engineer on a project, as well as the steps that must be followed to do so. With respect to health and safety concerns, the Code sets forth how to navigate the see-something-say-something principle, in other words what to report to clients and any relevant regulatory authorities.

In accordance with its import, the Code is substantial. And some industry professionals may struggle with its application in certain areas or circumstances. We can help. For the benefit of our clients and friends, we have hosted programs to outline the many ethical issues at play in the design and construction industry. These programs put the Code into practice and offer participants the opportunity to examine how the guidelines apply to real-world experience. If you have questions on a particular issue or would like to explore a lunch & learn program at your place of business, feel free to .(JavaScript must be enabled to view this email address).

Should New York Adopt a Statute of Repose?

Published by ​​Jessica Rothman on July 25, 2013

Question for the day: Should New York adopt a statute of repose to define a time limitation for legal actions related to injury or death caused by defective or unsafe improvements to real property?

This question is pertinent because New York is one of very few states where there is no statute of repose for construction claims. And matters arise regularly where the absence of a time limitation makes a significant difference in the outcome of the case.

A statute of repose could change that.

A statute of repose, like a statute of limitation, cuts off certain legal rights if they are not acted on by a certain deadline. A statute of repose is triggered by the completion of an act, while a statute of limitations is triggered by an injury.

In the construction world, a statute of repose would be triggered when a construction project is "substantially completed. Beginning then, the statute would limit the time frame in which negligence claims could be made. A statute of repose is a powerful tool for defendants because it imposes an absolute baror deadlinefor lawsuits arising from claims of defective real-property improvements against architects, professional engineers and contractors, among others.

Without a statute of repose in place, negligence claims may be brought indefinitely against design professionals and contractors, leaving them exposed to third parties negligence claims forever.*

Which is a very long time.

*Note: A cause of action for negligence and one brought by a third party (not the owner of a building) against a design professional or contractor is governed by a 3 year statute of limitations, and the cause of action does not accrue until the injury occurs. There is also an additional notice requirement for claims against design professionals arising out of injuries that occur more than 10 years after the completion of construction. However, despite this expedited procedure for 10+-year claims, design professionals and contractors remain exposed to third parties negligence claims indefinitely after project completion.

Timer Set on MSG Paves Way for Penn Station Redevelopment

Published by ​Tara Mulrooney on July 25, 2013

Yesterday marked a significant milestone in the intense debate over the future of two famous New York locales --- Madison Square Garden and Penn Station. In an almost unanimous 47 to 1 vote, the City Council approved only a 10-year special permit for Madison Square Garden to operate in its current location atop Penn Station. Often dubbed the world's most famous arena, The Garden battled to secure a permit to operate in perpetuity. This goal was challenged, and ultimately stymied, by a campaign of civic and community groups championing the relocation of the Garden in order to make room for a desperately needed overhaul of Penn Station. With the fate of the Garden sealed, now begins the arduous challenge for the next decade of raising the capital needed for the redevelopment of Penn Station and to keep the newly relocated Garden in the neighborhood. Not only will this future process of developing Penn Station and rebuilding the Garden elsewhere dramatically change the City landscape, it also offers numerous opportunities for the design and construction community to leave a significant impact in creating two future landmarks for the City.

The dream of a newly imagined Penn Station is already underway. In part of its push to win the battle against the Garden's forever permit, the Municipal Art Society of New York challenged four famous architects to submit plans for a newly envisioned, grander Penn Station. The cutting edge and inventive proposals all envisioned a multi-purpose venue with lots of green space. Highlights of the four proposed designs included: expanding the site's current footprint to include an eight-track high-speed rail, a three-acre public park, and a robust retail complex; creating a commercial development with towers, a sloping lawn four times the area of Bryant Park and a glistening glass dome rising from its center; creating a multilevel public space with amenities like a spa and a theater; and moving the entire complex to the West Side waterfront at 34th Street and including an elevated bike and pedestrian promenade and 16-acre park.

New York’s 128-year-old “Scaffold Law” Lives On

Published by ​Jessica Rothman on June 20, 2013

This week in Albany, representatives and supporters of the building and construction industry failed to level the playing field between contractors and workers in the 128-year-old Scaffold Law.

The law, enacted in 1885, currently holds property owners and contractors liable for ‘gravity-related injuries’ at construction sites, even when the worker bears some responsibility for the accident. Under the existing law, if a construction worker using scaffolding or a ladder is injured, the burden is on the contractor to prove the job site was safe.

The proposed changes by building and construction proponents added new language requiring juries to also consider workers’ actions when weighing injuries in court.

Opponents of the changes argued that reforming the law would eliminate the incentive for contractors and owners to keep job sites safe and impose too great a burden on workers who are not able to control conditions on a job site.

Assembly speaker Sheldon Silver killed the proposed changes, which will not be considered before the legislature adjourns on June 20. 

The law of 1885 lives on.

 

Hurricane Sandy Gives NYC Building Code a Fresh Look

Published by ​Tara Mulrooney on June 18, 2013

Hurricane Sandy caused a lot of strife—and a lot of litigation—in NYC.  But there was also a lot to learn from the storm and New York hasn’t wasted time identifying lessons … and solutions.

Last week, the NYC Building Resiliency Task Force issued a Report of 33 recommendations for proposed NYC Building Code changes. If accepted, the recommendations—aimed to make NYC buildings safer and better prepared for extreme weather—will have a profound impact on requirements for new construction in NYC, renovations to existing structures and, in some cases, retrofits to existing structures.

The Building Resiliency Task Force was formed by Mayor Michael Bloomberg and City Council Speaker Christine Quinn to assess the damage done by Superstorm Sandy and develop specific proposals to create “resilient” buildings—buildings that in the face of hurricanes, heavy rains, heat waves, blackouts, blizzards, storm surges and flooding, will resist damage, protect occupants and allow evacuated residents to return quickly to their homes.   The Task Force was comprised of 200+ members, including leading experts in the design and construction industry, architects, engineers, contractors, real estate owners, property managers, utility representatives, city officials and cost estimators. 

The 33 recommendations issued by the Task Force are grouped into four categories—Stronger Buildings; Backup Power; Essential Safety, Better Planning. Each recommendation is then identified as Required Upgrade, New Code, Remove Barrier, Recommended, or Further Action.  

Stronger Buildings, the largest chapter of the report, includes recommendations related to managing flooding, resisting wind and preventing emergencies.  These recommendations aim to reduce the likelihood that extreme weather will escalate into emergency conditions.  

Backup Power: Lack of electricity after Sandy proved more challenging for many New Yorkers than the storm itself. The Backup Power recommendations include installation recommendations for building owners who wish to voluntarily add backup power; changes to laws and incentives that allow owners to choose the right backup power source for their building; and power sources for two essential needs during blackouts—egress lighting in buildings and pumps at gas stations. 

Essential Safety recommendations are generally directed toward residential buildings (as other buildings can be left vacant in extreme weather events) and focus on protecting lives by ensuring drinking water, sanitation and habitable interior temperatures. 

Better Planning recommendations fall into three groupings: emergency planning, removing barriers to assisting those in need of help after disasters and speeding up recovery.  One recommendation of particular interest to design professionals is the recommendation to enact “Good Samaritan” legislation protecting architects and engineers from liability for emergency volunteer work. 

The Task Force Report also includes information on how each of the 33 recommendations affect all of the City’s different building types, from high rise towers and apartment buildings to single family homes and ground floor shops. 

Report back for details on Building Resiliency Task Force next steps and related news. 

 

Sample Recommendations from the Building Resiliency Task Force Report

Stronger Buildings:

  • Preventing storm damage by requiring new and replacement windows and doors to be wind resistant and strengthening foundations of existing buildings
  • Launching a design competition to design streetscapes of raised homes for buildings located in flood zones
  • Relocating building equipment systems from lower and first levels to levels above the flood zone
  • Preventing sewage backflow by requiring valves on building sewage lines
  • Designing sidewalks to capture storm water

 

Backup Power:  Requiring buildings to provide lighting in hallways and stairwells during extended blackouts and requiring all fuel stations to have a backup generator or be generator ready. 

Essential Safety:  Requiring residential buildings to provide drinking water to a common area supplied directly through pressure in the public water main and requiring toilets and faucets to function without grid power.

 

CA Court Upholds AIA Contract Provision: Suit against Webcor Builders Dismissed

Published by ​Tara Mulrooney on June 11, 2013

A recent court decision in California has significant implications for design and construction professionals nationwide.  In the case, Brisbane Lodging, L.P. v. Webcor Builders, Inc,  a CA appellate court unanimously upheld a 1997 American Institute of Architects (AIA) standard construction contract provision for the first time in the state. The provision—which has previously been upheld as valid and enforceable in numerous other states, including New York—provides that a construction project's substantial completion date—a defined project milestone—is a trigger date at which point the clock starts ticking on all future claims and actions subject then to their appropriate statutes of limitations. 

The California decision is important because it reinforces other states’ rulings that the AIA's standard provision is enforceable to alter the governing law—in this case California state law—when claims arise, including with respect to latent claims. Further, it allows parties to mutually agree to limit the period of uncertainty with respect to how long they can be exposed to claims by agreeing to an accrual date, and finally, as the CA court noted, the decision highlights the longstanding policy to respect and promote the freedom of sophisticated parties engaging in commercial construction projects to structure risk shifting by contract. 

The case involved claims for breach of contract, negligence and breach of warranties relating to the design and construction of an eight-story hotel. Some 4 years after substantial completion of the hotel, Brisbane, the project owner, first identified a latent problem with the plumbing system.  Approximately 4 years after identifying the issue—almost eight years after the undisputed substantial completion date—they commenced the related action. The defendant, Webcor, contended that the action was barred by the AIA provision (AIA Standard Form of Agreement Between Owner and Contractor and A201 General Conditions). Brisbane argued that the contract provision should not be enforced and California law should govern.  Due to the latent nature of the plumbing issue, under California law the statute of limitations would not have started to run until the plaintiff either actually discovered the injury, or could have discovered the injury through the exercise of reasonable care.  The Court of Appeals sided with Webcor and affirmed a trial court's decision to uphold the contract provision and dismiss Brisbane's lawsuit as untimely.

Keep posted for any further news on this case.

 

 

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