As we have often discussed on these pages, in New York, the
general rule is that without a contractual relationship between
contractor and designer, a contractor's ability to bring a
direct claim against a design professional is severely limited.
This has historically been very frustrating for contractors and
subcontractors alike when confronted with defective specifications,
such as, for example, abusively applied "sole source"
specifications. However, recent court decisions may now offer some
inroads for contractors and subs, particularly where the claim of
"defective specification" involves a design
professional's active involvement in the construction phase of
a project.
Given the law in New York requiring the need for a
contractual relationship (which virtually never
exists between a contractor and the owner's
design professional), a contractor can only pursue contract claims
if the contractor had a relationship with the design professional
which amounted to
