13
Dep. at 28, 13-20.) A backup generator system was considered essential to ensure that
the center could continue to function even in the event of a general power outage.
The plaintiffs concede that the creation of OEM and the selection of
7WTC as a site for OEM and the command center were governmental activities.
Plaintiffs argue, however, that the design and construction of the emergency backup
generator system reflected the sort of ordinary business activities that City agencies
normally perform and thus that these activities fall outside the scope of the DEA's grant
of immunity. I hold, to the contrary, that the design and installation of the emergency
backup generator system for the OEM command center was a good faith effort
undertaken by the City to facilitate civil defense.
There exist only a handful of cases in which New York courts have been
called upon to construe the DEA. In these cases, the courts have distinguished between
routine conduct for which there is no immunity under the DEA, and conduct that a
municipality performed while engaged in a civil defense function. In keeping with this
distinction, immunity did not attach to the routine and regularly scheduled patrolling
duties of auxiliary police officers serving in a unit that was part of the Nassau County
Office of Civil Preparedness. Fitzgibbons, 541 N.Y.S.2d at 849-50. Likewise, a
helicopter company hired by a municipality to enable its civil defense director to survey
damage caused during rioting was found to be "nothing more . . . than engaging in its
regular business of providing air transportation for hire." Abbott v. Page Airways, Inc.,
245 N.E.2d 388, 391 (N.Y. 1969).
Unlike a helicopter company whose very business it was to provide air
