Construction Defect Demand Letter - New York

NEW YORK CONSTRUCTION DEFECT NOTICE AND DEMAND

SELECT THE CLAIM ROUTE BEFORE SENDING

This template can serve as:

• a written housing merchant warranty claim under General Business Law Article 36-B;
• a voluntary contract or settlement notice for other construction work; or
• a factual demand accompanying, but not replacing, the special notice required by CPLR 214-d for certain older claims against licensed design professionals.

New York counsel should select the route, calculate every deadline, and review the governing contract, warranty, offering plan, and local licensing rules before use.

Date: [__/__/____]

Delivery: ☐ Certified mail, return receipt requested ☐ First-class mail ☐ Email ☐ Personal service ☐ Other: [METHOD]

To:

[BUILDER, CONTRACTOR, SELLER, OR DESIGN PROFESSIONAL]

[ADDRESS]

[CITY, STATE ZIP]

Re: Written notice of claimed construction defects

Owner: [NAME]

Property: [ADDRESS]

Contract/project: [DESCRIPTION]

Warranty date, if Article 36-B applies: [__/__/____]

Dear [RECIPIENT]:

[LAW FIRM OR SENDER] represents [OWNER NAME] concerning the conditions identified below. This letter gives written notice, requests inspection and resolution, and preserves a record of the owner's claim.

Selected route:

• ☐ Article 36-B housing merchant warranty claim. The recipient is the statutory builder, the property is a covered new home, and this notice is intended to satisfy General Business Law Section 777-a(4)(a).
• ☐ Contract or express-warranty notice. Article 36-B coverage is absent, uncertain, or not the only basis for the claim.
• ☐ CPLR 214-d claim against a licensed design professional. Separate compliant service and court filing are required; this letter alone is not assumed to satisfy the statute.
• ☐ Route requires further legal review.

A written response is requested by [__/__/____]. This requested response date is contractual or voluntary unless a cited agreement or law makes it mandatory.

1. ARTICLE 36-B COVERAGE CHECK

General Business Law Section 777 defines the parties, property, standards, and warranty date for the housing merchant implied warranty.

A. Covered home

A statutory “new home” is:

• a single-family house; or
• a for-sale unit in a multi-unit residential structure of five stories or less where title to individual units transfers under a condominium or cooperative regime.

The definition excludes a dwelling constructed solely for lease, a statutory mobile home, and a house or unit in which the builder resided or which the builder leased continuously for at least three years after completion as evidenced by a certificate of occupancy.

Coverage facts:

• ☐ Single-family house
• ☐ Condominium unit in a structure of five stories or less
• ☐ Cooperative unit in a structure of five stories or less
• ☐ Not a covered Article 36-B home
• ☐ Coverage uncertain: [EXPLAIN]

B. Builder and owner

Under Section 777, a “builder” is a person or entity contracting with an owner for construction or sale of a new home. “Owner” includes the first buyer and, during the unexpired warranty period, each successor in title and a mortgagee in possession, but excludes the builder and a firm under the builder's common control.

• Builder: [NAME]
• First owner: [NAME]
• Current owner: [NAME]
• Successor-in-title date, if applicable: [__/__/____]

C. Warranty date

The warranty date is the earlier of:

• passage of title to the first owner for occupancy by that owner or family; or
• first occupancy of the home as a residence.

2. ARTICLE 36-B WARRANTY CATEGORY AND DEADLINE

Section 777-a provides three warranty periods measured from the warranty date:

Under Section 777, “constructed in a skillful manner” uses the applicable building code's specific standard or, if none applies, locally accepted building practices. “Material defect” is a defined structural category, not every serious or expensive defect.

Selected category:

• ☐ One-year skillful-construction warranty
• ☐ Two-year specified-systems warranty
• ☐ Six-year material-defect warranty
• ☐ More than one category: [IDENTIFY]
• ☐ Article 36-B category not yet determined

Written-notice deadline

Under Section 777-a(4)(a), the builder must receive written notice before an Article 36-B action begins and no later than 30 days after the applicable one-, two-, or six-year warranty period expires.

Action deadline

Section 777-a(4)(b) permits an Article 36-B action before the later of:

• one year after the applicable warranty period ends; or
• four years after the warranty date.

If the builder repairs in response to the warranty claim, an action on that claim may also be commenced within one year after the last repair date. Counsel must calculate the statute from the full facts and should not assume this notice alone tolls a deadline.

3. LIMITED OR MODIFIED WARRANTY CHECK

Section 777-b permits the housing merchant implied warranty to be excluded or modified only through a qualifying limited warranty that satisfies detailed disclosure, coverage, duration, standard, and remedy requirements.

• ☐ No limited warranty identified
• ☐ Limited warranty attached to or incorporated in the sale contract
• ☐ Limited warranty provided before contract execution
• ☐ Limited warranty extends to this owner
• ☐ Limited warranty coverage and exclusions require counsel review

Warranty document: [TITLE, DATE, AND LOCATION]

Do not assume that a general “as is,” merger, or disclaimer clause validly displaces Article 36-B. Counsel should compare the document with every applicable requirement in Section 777-b.

4. PROPERTY AND PROJECT INFORMATION

Other involved parties:

5. CLAIMED DEFECTS

Complete a separate entry for each condition. Identify the physical facts and supporting standard rather than relying only on a legal label.

DEFECT 1 — [SHORT TITLE]

Exact location: [LOCATION]

Observed condition: [DETAILED DESCRIPTION]

Date first observed: [__/__/____]

Progression or prior repair: [DESCRIPTION]

Resulting damage: [DESCRIPTION]

Potential basis:

• ☐ Article 36-B one-year skillful-construction warranty
• ☐ Article 36-B two-year specified-systems warranty
• ☐ Article 36-B six-year material-defect warranty
• ☐ Identified contract provision: [CITE]
• ☐ Identified express or limited warranty: [CITE]
• ☐ Applicable code or accepted-practice standard: [IDENTIFY]
• ☐ Professional standard requiring expert review
• ☐ Other: [IDENTIFY]

Requested repair or replacement: [DESCRIPTION]

Estimated amount: $[AMOUNT OR PENDING]

DEFECT 2 — [SHORT TITLE]

[REPEAT THE DEFECT 1 FORMAT.]

6. SUPPORTING MATERIAL

The following is enclosed or available:

• ☐ Dated photographs or video
• ☐ Inspection report
• ☐ Engineer, architect, or consultant report
• ☐ Moisture or other testing
• ☐ Contract, plans, specifications, and change orders
• ☐ Offering plan and amendments
• ☐ Certificate of occupancy
• ☐ Express or limited warranty
• ☐ Prior notices and responses
• ☐ Repair estimates
• ☐ Prior repair records
• ☐ Relevant communications
• ☐ Other: [DESCRIPTION]

7. INSPECTION, TESTING, AND REPAIR OPPORTUNITY

For an Article 36-B claim, Section 777-a(4)(a) requires the owner and occupant to afford the builder a reasonable opportunity to inspect, test, and repair the portion of the home involved in the warranty claim.

Please propose dates and identify:

1. all attendees and their roles;
2. the areas and systems to be inspected;
3. each proposed test and whether it is destructive;
4. occupant and property protections;
5. the plan to restore opened or disturbed areas; and
6. the proposed repair scope, schedule, permits, inspections, and warranty.

Inspection contact: [NAME, PHONE, EMAIL]

Emergency measures needed to protect people or property should be documented. Before non-emergency alteration, counsel should assess warranty, contract, insurance, inspection, and evidence consequences.

8. CPLR 214-d DESIGN-PROFESSIONAL NOTICE CHECK

CPLR 214-d applies to specified personal-injury, wrongful-death, property-damage, contribution, and indemnification claims against a licensed architect, engineer, land surveyor, landscape architect, or qualifying professional firm when the claim is based on professional performance, conduct, or omission occurring more than ten years before the claim.

When it applies, the claimant generally must:

1. serve written notice at least 90 days before commencing or interposing the claim;
2. identify the complained-of performance, conduct, or omissions on information and belief;
3. include a request for general and special damages;
4. use a method permitted for personal service of a summons;
5. file the notice and proof of service in a New York court within 30 days after service; and
6. represent compliance in the later pleading.

Service under CPLR 214-d tolls the applicable limitation period through 120 days after service. After 90 days, the claimant may commence or interpose the claim, subject to the statute's procedures.

Applicability:

• ☐ No licensed design professional is a target
• ☐ Relevant professional conduct occurred ten years or less before the claim
• ☐ CPLR 214-d may apply; separate notice and filing will be prepared
• ☐ Applicability uncertain; do not rely on this demand as statutory service

9. PROPOSED RESOLUTION

Option A — Repair or Replacement

• Agreed scope: [DESCRIPTION]
• Responsible contractor: [NAME]
• Local license/credential: [NUMBER]
• Permits and inspections: [DESCRIPTION]
• Start: [__/__/____]
• Completion: [__/__/____]
• Temporary protection or relocation: [DESCRIPTION]
• Post-repair testing: [DESCRIPTION]
• Written repair warranty: [TERMS]
• Other payment: $[AMOUNT AND BASIS]

Option B — Monetary Resolution

• Payment: $[AMOUNT]
• Payment date: [__/__/____]
• Repair responsibility after payment: [DESCRIPTION]
• Proposed release scope: [DESCRIPTION]

No settlement should be accepted without defining the defects and claims resolved, later-discovered damage, repair standard, access, permits, testing, payment, warranties, insurance, and release terms.

10. CLAIMS AND DAMAGES FOR COUNSEL REVIEW

Potential theories depend on the property, parties, contract, warranty, offering documents, professional relationships, and facts:

• ☐ Article 36-B housing merchant warranty
• ☐ Breach of an identified contract provision
• ☐ Breach of an identified express or limited warranty
• ☐ Negligence or professional malpractice
• ☐ Qualifying sale-of-goods warranty claim
• ☐ Consumer-protection theory based on specifically identified conduct
• ☐ Other: [IDENTIFY]

Potential damages:

For an Article 36-B claim, Section 777-a(4)(b) supplies a specific damages measure and cap. Counsel should separately determine whether each requested category, fee, cost, interest item, or other remedy is available under the proven claim.

11. LIMITATIONS AND ACCRUAL

Do not use one limitations period for every construction dispute.

• Contractual obligations: CPLR 213(2) generally provides six years but expressly excepts claims governed by UCC Article 2 and General Business Law Article 36-B.
• Article 36-B: Section 777-a(4) supplies its own notice and action periods, including a repair-based provision.
• Property injury: CPLR 214(4) provides three years for an action to recover damages for injury to property, subject to statutory exceptions.
• Nonmedical malpractice: CPLR 214(6) provides three years for malpractice other than medical, dental, or podiatric malpractice, regardless of whether the theory is contract or tort.
• Contracts for sale: UCC Section 2-725 provides four years for breach of a qualifying contract for sale and should not be applied automatically to construction services.
• Older design-professional claims: CPLR 214-d is a notice and procedure statute, not a general ten-year repose bar.

Accrual, standing, relation-back, repair effects, contractual limitations, and the characterization of mixed goods/services claims require fact-specific analysis. Discovery of a latent defect should not be assumed to restart a period unless governing law expressly provides it.

12. LOCAL LICENSING AND PERMITS

New York does not use one statewide home-improvement contractor license for every locality. Current Attorney General guidance identifies licensing requirements in New York City; Suffolk, Nassau, Westchester, Putnam, and Rockland counties; and the City of Buffalo. Other local requirements may also apply.

Verify permits, inspections, certificate-of-occupancy records, professional licenses, and the contractor's exact local credential through the responsible agency.

13. RECORD PRESERVATION

Please preserve relevant project records and materials, including contracts, subcontracts, offering plans, plans, specifications, change orders, permits, inspection records, communications, photographs, daily logs, warranty documents, invoices, testing data, insurance information, and prior repair records. Available remedies for missing evidence depend on the facts and governing law.

14. CONCLUSION

Please acknowledge receipt, propose inspection dates, and provide a written response by [__/__/____]. Direct communications to [CONTACT NAME] at [CONTACT INFORMATION].

Nothing in this letter waives a claim, defense, remedy, contract term, or deadline. This letter is not a CPLR 214-d filing or proof of statutory service unless New York counsel expressly completes those separate steps.

Respectfully,

[LAW FIRM OR SENDER NAME]

By: _________________________________

[ATTORNEY OR OWNER NAME]

[NEW YORK ATTORNEY REGISTRATION NUMBER, IF APPLICABLE]

[ADDRESS]

[TELEPHONE]

[EMAIL]

ENCLOSURES

• ☐ Defect evidence listed above
• ☐ Contract, plans, and change orders
• ☐ Offering plan and amendments
• ☐ Express or limited warranty
• ☐ Expert or inspection material
• ☐ Repair estimates
• ☐ Other: [DESCRIPTION]

ATTORNEY REVIEW CHECKLIST

1. Confirm Article 36-B property, builder, owner, warranty-date, and defect-category coverage under Sections 777 and 777-a.
2. Calculate the written-notice cutoff and action deadline under Section 777-a(4); document every builder repair date.
3. Test any limited warranty or disclaimer against every applicable requirement in Section 777-b.
4. Determine whether CPLR 214-d applies and, if so, separately complete service, court filing, proof, pleading, and timing requirements.
5. Classify each claim under CPLR 213, CPLR 214, Article 36-B, UCC Article 2, or other claim-specific law.
6. Review offering-plan authority, standing, assignments, contract remedies, arbitration, mediation, notice, and limitations clauses.
7. Verify local contractor licensing, professional licensure, code editions, permits, and inspection records.

OFFICIAL SOURCES

• General Business Law Article 36-B: https://www.nysenate.gov/legislation/laws/GBS/A36-B
• General Business Law Section 777 definitions: https://www.nysenate.gov/legislation/laws/GBS/777
• General Business Law Section 777-a warranty, notice, action, and damages provisions: https://www.nysenate.gov/legislation/laws/GBS/777-A
• General Business Law Section 777-b limited-warranty requirements: https://www.nysenate.gov/legislation/laws/GBS/777-B
• CPLR 213: https://www.nysenate.gov/legislation/laws/CVP/213
• CPLR 214: https://www.nysenate.gov/legislation/laws/CVP/214
• CPLR 214-d: https://www.nysenate.gov/legislation/laws/CVP/214-D
• UCC Section 2-725: https://www.nysenate.gov/legislation/laws/UCC/2-725
• New York Attorney General home-improvement contractor guidance: https://ag.ny.gov/resources/individuals/consumer-issues/contractors-home-maintenance

This template is for informational purposes only and does not constitute legal advice. Consult a licensed New York attorney before use.