36
terrorist attack on the World Trade Center and the decision of the FDNY to not fight the
fire that consumed 7WTC were superseding causes.
These remaining grounds repeat the arguments made by the defendants
against the plaintiffs and plaintiffs' representatives who filed suit against the airlines, the
aircraft security companies, and the Port Authority for the deaths and injuries resulting
from the crash of the terrorists into, and the collapse of, Towers One and Two of the
World Trade Center. Defendant's motion on these grounds is denied for the same
reasons that were discussed in my opinion in In re September 11 Litigation, 280 F. Supp.
2d 279, and as stated in brief in my earlier discussion denying Citigroup's motion based
on issues of proximate cause.
V.
T
HE
D
ESIGN
,
C
ONSTRUCTION
,
AND
O
WNING AND
M
ANAGING
D
EFENDANTS
'
M
OTION TO
D
ISMISS
All other defendants who were involved in the design, construction,
operation and management of 7WTC move to dismiss the Amended Complaint for failure
to allege a legally sufficient claim for relief against them. Fed. R. Civ. P. 12(b)(6).
These defendants argue three general grounds for dismissal: (1) the absence of a duty of
care owed to Con Ed and its insurers; (2) the absence of proximate cause; (3) the
inappropriateness of the products liability claims. I address the first and third in turn, and
the second in the margin.
6
A. Procedural History
The initial Complaint lumped all defendants together, and alleged a
6
Defendants' argument based on lack of proximate cause requires a fact-intensive analysis. See
Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 312 (1980). Therefore, and in accordance with my
findings in earlier sections of this Opinion, I deny defendants' motion on this ground as premature.
