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an answer, Citigroup has filed a Rule 12(b)(6) motion to dismiss plaintiffs' complaint.
Fed. R. Civ. P. 12(b)(6).
A. Background
In 1988, Salomon Inc., now Citigroup, entered into an agreement with
Silverstein as 7 World Trade Company's managing agent, pursuant to which Citigroup
leased floors 28-47 and portions of floors 1-5 of 7WTC. (See Agreement of Lease
between 7 World Trade Company and Salomon Inc. (the "Citigroup Lease"), dated
November 23, 1988, Bekker Dec. Ex. F.) Simultaneously with the Citigroup Lease, 7
World Trade Company and Citigroup executed a three party agreement with the Port
Authority pursuant to which the Port Authority retained the right of final approval of
Citigroup's design and construction of its leased premises at 7WTC. (See Three Party
Agreement by the Port Authority, 7 World Trade Company, and Salomon (the "Three
Party Agreement"), dated November 23, 1988, Bekker Dec. Ex. B, §§ 5.1(a)-(b), 5.3.)
In order to ensure that a power outage would not disrupt Citigroup's
trading activities at 7WTC, the Citigroup Lease provided that Citigroup would have the
right to install "diesel emergency power generators ... together with all ancillary
equipment therefor." (Citigroup Lease at C-10.) The Citigroup Lease included detailed
provisions relating to the size and location of the generators and provided further that 7
World Trade Company would "arrange with the Port Authority for the installation of a
diesel fuel storage tank on the property of the Port Authority and the installation of a fuel
line from such facility running through the property of the Port Authority to the Tenant's
emergency power generators." (Citigroup Lease at C-11.)
