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filed an answer setting forth its affirmative defenses and the parties have engaged only in
a limited course of discovery. In considering a motion to dismiss pursuant to Rule
12(b)(6), Fed. R. Civ. P., I am limited to those documents incorporated by reference into
the complaint or, in the alternative, documents "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). Here, the Amended Complaint asserts simply that the Port Authority, as the
owner of the property where 7WTC was located, and as Con Ed's lessor, owed a duty of
care to Con Ed and that this duty was breached. Although the agreement may prove
critical to any defense asserted by the Port Authority, it is not integral to the substance of
the Amended Complaint, and it would be a mistake to try to interpret its claims without
an assured understanding of the entire relationship among the parties. The motion of the
Port Authority is denied.
D. The Cause of Action in Negligence Per Se is Dismissed for Failing to State a Claim
In their second cause of action, plaintiffs claim that the Port Authority is
negligent per se for its "failure to properly apply, interpret and enforce New York City
and State fire and safety codes and regulations ... in violation of its duty of care." (Am.
Compl. 7188 ¶ 41.)
Under New York law, "violation of a State statute that imposes a specific
duty constitutes negligence per se, or may even create absolute liability." Elliot v. City of
New York, 747 N.E.2d 760, 762 (N.Y. 2001). However, "violation of a municipal
ordinance constitutes only evidence of negligence." Id. In setting forth this distinction,
Elliot adopted the rationale of Major v. Waverly & Ogden, 165 N.E.2d 181 (N.Y. 1960),
that rules, ordinances and regulations of localities, municipalities or agencies are not
