35
Dismiss,
5
"violation of a municipal ordinance constitutes only evidence of negligence,"
Elliott, 747 N.E.2d at 762, and is not sufficient to sustain a cause of action for negligence
per se. Major, 165 N.E.2d 181. Here, Con Ed has not alleged that a state statute has been
violated. Plaintiffs' conclusory allegation alone, that Citigroup failed to construct and
maintain its premises in accordance with the fire and safety codes, regulations and
practices of New York City and New York State (Am. Compl. 7272 ¶ 162), is not
sufficient to sustain their claim for negligence per se, particularly in light of the
jurisdictional exclusivity of the Port Authority. Citigroup's motion is therefore granted
with respect the plaintiffs' fourth claim for relief, and that claim is dismissed.
5. Statute of Limitations
Citigroup next argues that the Complaint should be dismissed for failure to
file a timely claim, within the three year statute of limitations for claims relating to
property damage. N.Y. C.P.L.R. § 214(d) (McKinney 2004). Citigroup argues that the
three-year period begins to run, not from the date that 7WTC collapsed, but from the
earlier date when damage from the negligent construction was allegedly foreseeable.
Mark v. Eshkar, 598 N.Y.S.2d 255, 256 (1st Dep't 1993). There is nothing in the
Complaint that can give rise to such an argument. The filing of the Complaint against
Citigroup, on September 10, 2004, was timely. Citigroup's Motion to Dismiss for failure
to satisfy the statute of limitations is denied, with leave granted to assert a well-pleaded
defense based on specific and appropriate allegations.
6. The Remaining Arguments for Dismissal are Premature
Citigroup argues also that the Complaint should be dismissed on the
ground that plaintiffs' claimed damages are too remote and speculative, and that the
5
See discussion supra Part III.D.
