16
III.
T
HE
P
ORT
A
UTHORITY
'
S
M
OTION TO
D
ISMISS
The Amended Complaint of Con Ed's insurers against the Port Authority
alleges that the Port Authority was the owner of the property located at Washington and
Barclay Streets in New York City, that the property was part of the World Trade Center
and the area where 7WTC was constructed, that the Port Authority entered into a lease
with Con Ed pursuant to which Con Ed built a substation beneath the property that would
become 7WTC, that the Port Authority retained final control over the design and
construction of 7WTC, and that its negligence in approving the design and construction
of 7WTC in general, and the maintenance of diesel fuel tanks housed in 7WTC in
particular, proximately caused the collapse of 7WTC and the destruction of the Con Ed
substation. The Amended Complaint also states a negligence per se claim against the
Port Authority, claiming that the Port Authority failed to enforce New York City and
State fire safety codes, regulations and practices, thus giving rise to the per se claim.
Plaintiffs sue to recover for damage to the substation.
By motion of April 30, 2004, the Port Authority moved to dismiss the
Amended Complaint filed by the plaintiffs on two grounds: 1) that the Port Authority's
negligence was not the proximate cause of the destruction of the Con Ed substation; and
2) that the lease agreement between the Port Authority and Con Ed, naming the Port
Authority as an insured, barred Con Ed's subrogated insurers from bringing the instant
action. Following oral argument on November 30, 2004, I denied the Port Authority's
motion to dismiss without prejudice to resubmission upon completion of limited
discovery. See Summary Order, dated December 1, 2004.
