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defendants did not owe Con Ed such a duty of care, and their motion is granted. The
owning and managing defendants, however, did owe a duty of care to plaintiffs, and their
motions are denied until after answer and the development of an evidentiary record.
These remaining defendants are regrouped, for the sake of discussion, into Design
Defendants, Construction Defendants, and Owning and Managing Defendants.
1. The Design Defendants
Those who perform work, or deliver services or products, pursuant to a
contractual or other commercial relationship owe duties of care and proper performance
to those entitled to receive the benefit of their work or services or products. See
Ultramares Corp. v. Touche, 174 N.E. 441 (N.Y. 1931). Absent such a defined
relationship or other special circumstances, duties are not owed to the public at large or to
those outside the limited class of people who, it is reasonable to believe, are entitled to
expect the actor's due care to them. Waters, 505 N.E.2d at 924. Thus, accountants can
be liable only to the limited class of persons whose reliance on an audited opinion is
specifically foreseen or undertaken. Ultramares Corp., 174 N.E.2d 441; see also Credit
Alliance Corp. v. Arthur Anderson & Co., 483 N.E.2d 110, 118 (N.Y. 1985)(reaffirming
the principle of Ultramares that some form of privity, either actual or implied, must exist
between the parties in order for liability to attach). And architects and engineers who
owe a duty of care to the owner of a building who engaged them, do not owe such a duty
to a later or successor owner who purchased that building, absent a special relationship or
a covenant providing for such liability. Lanaro v. Bosman, 696 N.Y.S.2d 552, 553 (3d
Dep't 1999); see also Melnick v. Parlato, 745 N.Y.S.2d 68 (2d Dep't 2002).
