27
Citigroup
engaged
the
architectural firm Skidmore, Owens and Merrill
("Skidmore"), the mechanical engineering firm Flack & Kurtz, and Irwin Cantor, P.C. as
the structural engineer. In accordance with the provisions of the Three Party Agreement,
the work of the professionals retained by Citigroup was reviewed by both Silverstein and
the Port Authority. Upon completion of the Citigroup Premises, the Port Authority
issued a Permit to Occupy which expressly stated that its design and construction
requirements had been satisfied. (See Permit to Occupy, Bekker Dec. Ex. A.)
B. Discussion of Citigroup's Alleged Grounds for Dismissal
Citigroup has set forth the following grounds for dismissal: 1) that
Citigroup owed no duty of care to Con Ed; 2) that the Con Ed Lease prohibits the
plaintiffs from asserting negligence claims against Citigroup; 3) that the Port Authority's
exclusive control over the design and construction of the Citigroup premises bars the
current action; 4) that the plaintiffs have failed to make out a claim for negligence per se;
5) that plaintiffs' claims are barred by the applicable statute of limitations; and 6) that the
claimed damages are too remote and that, in any event, the actions of the terrorists and
the decision of the FDNY to allow 7WTC to burn unimpeded were superseding causes. I
address each ground separately.
1. Duty of Care
Citigroup argues first that the complaint against it should be dismissed
because it had no duty to protect Con Ed against the criminal acts of third parties and
because the events of September 11 were not reasonably foreseeable.
The scope of duty is a legal issue for the court to resolve. Waters v. New
York City Housing Authority, 505 N.E.2d 922, 923 (N.Y. 1987); see also Palsgraf v.
