18
curiam) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.
1991)). "Even where a document is not incorporated by reference, a court may
nevertheless consider it where the complaint `relies heavily upon its terms and effect,'
which renders the document `integral' to the complaint." Chambers v. Time Warner, Inc.
282 F.3d 147, 152 -53 (2d Cir. 2002) (citing Int'l Audiotext, 62 F.3d at 72).
B. Discussion of Issue of Proximate Cause
The Port Authority argues first that the Amended Complaint of Con Ed's
subrogated insurers should be dismissed because any alleged negligence by the Port
Authority was not, as a matter of law, the proximate cause of plaintiffs' damages. The
Port Authority asserts that the New York Fire Department's ("FDNY") decision to allow
7WTC to burn without intervention constituted a supervening cause, thus severing any
connection between the alleged negligence of the Port Authority and the subsequent
destruction of the Con Ed substation. In particular, the Port Authority contends that the
"World Trade Center Building Performance Study" issued by the Federal Emergency
Management Agency (the "FEMA Report") clearly establishes that the decision of the
FDNY to allow the fires at 7WTC to burn uncontrolled, coupled with the destruction of a
water main that weakened the 7WTC sprinkler system, were substantial factors leading to
the collapse of 7WTC. (See FEMA Report, 5-21, Jacob Dec., Ex. E.) Relying on the
findings set forth in the FEMA Report, the Port Authority urges that even if a fire at
7WTC was arguably foreseeable, the subsequent decisions of the FDNY and the
unprecedented character of the September 11 attacks were extraordinary events which
served to cut off the Port Authority's liability for any damages sustained to the Con Ed
substation.
