30
risks. 532 Madison, 750 N.E.2d at 1101. Liability is limited to only the class of persons
within the "special relationship." Id. Citigroup argues by its Motion that there was no
special relationship between it and Con Ed that would require Citigroup to protect Con
Ed from the actions of criminal, third party actors, and no special relationship was alleged
in the Amended Complaint.
However, the Amended Complaint alleged that Con Ed suffered damage,
not from the criminal acts of the September 11 terrorists, but from Citigroup's negligence
in the design, construction and maintenance of its premises in 7WTC. (Am. Compl. 7272
¶¶ 155-160.) Again, a motion to dismiss is not the proper procedure to test the legal
sufficiency of plaintiffs' allegation of duty and proximate cause. While it is well
established that intervening acts of an "extraordinary nature" may so attenuate a
defendant's negligence from the injury sustained by the plaintiff as to preclude a finding
of proximate cause, Kush, 449 N.E.2d at 727, the issues of proximate, foreseeable,
intervening and independent causes are fact-laden, requiring a fully developed factual
record, and not the bare-bones motion to dismiss that Citigroup presents. See In re
September 11 Litigation, 280 F. Supp. 2d at 302. Accepting the facts alleged in the
complaint as true as I am require to do under Rule 12(b)(6), Fed. R. Civ. P., I hold that
plaintiffs have, at this stage, pleaded sufficient facts to allege duty and proximate cause.
Citigroup's motion to dismiss is denied.
2. Citigroup's Status as a Third Party Beneficiary of the Agreement between Con Ed and
the Port Authority
Citigroup argues also that it is a third party beneficiary of the Con Ed
