Central School District No. 2 v. Flintkote Co.

56 A.D.2d 642, 391 N.Y.S.2d 887, 1977 N.Y. App. Div. LEXIS 10761

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1977
• Status: Published

Opinion

In an action, inter alia, to recover damages predicated upon the improper and negligent installation of a roof, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered May 5,1976, which, after a nonjury trial, is in favor of defendants and against it. Judgment, insofar as it is in favor of defendant the Flintkote Company, affirmed, without costs or disbursements. Judgment, insofar as it is in favor of defendant Eggers and Higgins, reversed, on the law and the facts, and, as between plaintiff and said defendant, action severed and new trial granted, with costs to abide the event. We agree with Trial Term that there was no ambiguity in the $5,700 limitation in the "Twenty Year Built-Up Roof’ guarantee bond and that, since that sum had been exceeded by the Flintkote Company in its expenditures for repairs, the action against that defendant was properly dismissed. A new trial is required, however, to determine whether, in view of all of the circumstances, defendant Eggers and Higgins (the architect) failed to meet its obligation to inspect the construction and, if so, whether that was the proximate cause of the failure to discover that the roofing subcontractor did not meet the roofing specifications. Assuming, as the Trial Term found, that the "Clerk of the Works” was an employee of the school district, the defendant architect had an independent obligation to make its own inspections (from "time to time”) pursuant to its contract with the school district and to live up to the standard of care required of an architect. Eggers and Higgins could not properly rely solely upon the assumption that the "Clerk of the Works” was properly inspecting the work of the subcontractor roofer. For example, the record raises a serious question as to why the deficiency in the number of tiers of felt (one of the unquestioned faults in the installation of the roofing) was not discovered by the architect. If an architect can escape the obligation and supervisory duties he contracted to perform merely by accepting, at face value and without verification, the approval of the "Clerk of the Works” as to the progress of the work, the owner would be deprived of the professional judgment which he had the right to expect. The owner’s retainer of a "Clerk of the Works” for full-time, on-site services, constituted a protection that is an addition to and not a substitute for the contractual and professional obligations of the architect. Rabin, Acting P. J., Shapiro, Titone and O’Connor, JJ., concur.