42
In Lanaro, the plaintiff purchased improved lots from the United States
Land Acquisition and Development Corporation. Lanaro, 696 N.Y.S.2d at 553. The
plaintiff subsequently sued the engineering firm that had performed work for the seller,
alleging negligence in the design, installation, construction and development of the
infrastructure of the lots, and alleging further that the defendant had failed properly to
supervise the work. The Appellate Division held that "the work performed by defendant
was intended to benefit U.S. Land Acquisition only and not plaintiff," and that, in the
absence of any contractual or other special relationship, "nothing in the record justifie[d]
inferring that [the defendant] owed plaintiff any legal duty." Id.
While it is true that Con Edison was a known occupant of the substation at
the time that the Design Defendants performed their work in designing and building
7WTC, that does not mean that these defendants undertook a duty to Con Ed. The
engineering firm in Lanaro was reasonably on notice that the owner of the land with
which it was in contractual privity might sell the land with its improvements. Yet, the
court in Lanaro held clearly that the duty of care ran only to the owner that had engaged
the engineer, and not to a successor. The Court of Appeals has endorsed such "[p]olicy-
driven line-drawing" even though it "invariably []cuts off liability to persons who
foreseeably might be plaintiffs." 532 Madison, 750 N.E.2d at 1103.
In Melnick, 745 N.Y.S.2d 68, the Appellate Division reiterated that
merely participating in the design, construction, and supervision of construction of a
structure is not enough to give rise to a duty of care. Instead, the burden is on the
plaintiff to show that "the functional equivalent of privity of contract arose between
themselves and [defendant] as a result of [the defendant's] actions." The Court of
