Our site is optimized for screen resolutions of 1024 x 768 and higher. We’ve detected yours is set below this. For the best experience, please adjust your resolution. To close this message click here

How Can We Help?

Team Leader

prev Back    Team Page    More next

In The News

James W. Whitcomb Comments on Design-Build Method in Construction  More

Michael Powers Comments Regarding Oral Arguments in Lawsuit Against Wicks Law  More

View all for this practice area

Press Releases

Phillips Lytle LLP Listed Among 2017 U.S. News – Best Lawyers® “Best Law Firms”  More

Nine Phillips Lytle Rochester Attorneys Ranked in The Best Lawyers In America© 2017  More

Phillips Lytle Among Highest Ranked Law Firms in Buffalo with Seven Top Listed Practice Areas in The Best Lawyers In America© 2017  More

View all for this practice area


“Top 10: Tips on private improvement mechanics liens,” The Daily Record, March 2011  More

“Top 10: Navigate construction contract disputes,” The Daily Record, May 2010  More

View all for this practice area

Construction Litigation

At Phillips Lytle, our Construction Litigation expertise has been developed by representing numerous owners, architects, general contractors, subcontractors and material suppliers in all phases of dispute resolution. Our experience includes negotiation, mediation, arbitration and litigation on a broad range of construction-related issues.

Phillips Lytle’s Construction attorneys handle matters involving:

  • Change orders
  • Delay damages
  • Changed site conditions
  • Cost accounting
  • Breach of contract
  • Recovery of trust funds
  • Recovery for personal injuries and property damage
  • Architectural fee disputes
  • Foreclosure of mechanic’s liens
  • Defective workmanship
  • Improper termination

In addition, we have first-hand experience litigating construction defect cases involving sewer line damage, concrete failure, foundation failure, parking lot failure, defective retaining walls, defective roofing and roof systems, and architectural and engineering malpractice.

Phillips Lytle’s attorneys remain involved and up-to-date on issues facing the construction industry. One of the firm’s well-respected Construction attorneys has authored the New York chapter of the State-by-State Guide to Construction and Design Law. A number of our other attorneys have also been asked to speak on the topics of design/build, construction management, mechanic’s liens, dispute resolution of construction claims, and New York Labor Law Sections 240 and 241.

Our attorneys are members of the following:

  • ABA Forum on the Construction Industry
  • ABA and NYSBA Construction Litigation Committees
  • Board of Governors of the Construction Exchange of Buffalo and WNY
  • New York State Builders Association
  • Builders Exchange of Rochester
  • Eastern Contractors Association, Inc.


A few specific examples of our Construction expertise include:

  • Representing Ortho-Clinical Diagnostics Inc., a subsidiary of Johnson & Johnson Company, as buyer of a 500,000-square-foot industrial/manufacturing building and 11 acres of land out of a single parcel of 270 acres. Because the property was located in the interior of Kodak Park, there was no access to public roads, sewers, electric, water, steam, sanitary or industrial wastewater disposal, fire protection or other first-responder services, or any other utility or support services. Therefore, we were involved in 38 private easement and operating agreements negotiated with Eastman Kodak Company to create (on a private basis) all of the necessary infrastructure to support the building when separated. The property is the subject of ongoing remediation and reporting due to an EPA Consent Decree and a NYSDEC Statement of Basis for Kodak Park Investigation. Phillips Lytle attorneys reviewed and evaluated the environmental risks, negotiated appropriate indemnities from the seller, and advised the buyer as to its ongoing obligations after closing. This engagement involved complete responsibility for all external legal aspects of the project, including: zoning variances and other land use issues, environmental risk evaluation, title insurance, purchase and sale documentation, supporting infrastructure documentation, and real property tax parcel apportionment.
  • Representing private developers, owners, architects, engineers, contractors and subcontractors in disputes involving design defects, errors and omissions in plans and specifications, delays, claims for changed site conditions, claims arising out of change orders and proposed change orders, claims for improper termination, claims for rescission of a bid, and claims for injuries occurring on job sites
  • Routinely participates in construction mediations, and arbitrates and litigates all types of construction claims
  • Representing the Harlem Community Development Corporation in connection with the redevelopment of the Victoria Theater into a mixed-use hotel, condominium and cultural center. Our work included negotiations with the construction manager, general contractor, architects and related labor issues.
  • Representing the ground lessor in the $400 million development of Site 24 in Battery Park City into a residential, garage and community center. Our work included reviewing and negotiating construction documents on behalf of the landowner.
  • Representing the anchor tenant and lender in the construction of ground floor retail space located at 354 Fifth Avenue. Our work included negotiating with the Metropolitan Transit Authority regarding construction issues, plan approval and easement issues.
  • Negotiating and drafting construction, fabrication and design agreements for the FF&E of a New York Stock Exchange retail company’s stores throughout the United States
  • Negotiating and drafting architectural and construction agreements for the owner of a townhouse in Soho. Our work included redesign related to issues discovered on demolition and numerous change orders and budget issues.
  • Assisting an affiliate of a state university in connection with development and construction agreements for a pilot chip fab facility
  • Representing a company in connection with the drafting and negotiations of construction management and architect agreements, and construction contracts for a global headquarters facility
  • Obtaining a favorable settlement for a construction manager in a Montgomery County lawsuit that had been filed by a property owner who alleged our client’s negligence resulted in building foundation slabs having to be removed
  • Successfully representing a contractor through jury verdict in claims that had been brought by a subcontractor. The subcontractor accused our client of destroying its equipment and claimed it was not compensated for work performed in Monroe County after our client had originally rejected that same work.
  • Achieving a favorable settlement for an owner on a differing site condition claim that had been brought by a deep tunnel excavator
  • Achieving a favorable settlement for an architect who had been sued for malpractice over his alleged involvement with drilling plans that would eventually be linked to an environmental contamination
  • Successfully representing a property owner in Monroe County who had brought an action for defective structural slab constructions
  • Obtaining a favorable mediated settlement for our client in its dispute with a variety of construction contractor defendants over defects which had resulted in a collapsed building
  • Obtaining a judgment after a trial against the developer of a high-end homeowners’ association for construction defects 

James W. Whitcomb

Play audio clip