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Appeals has held further that in order for such privity to arise, the defendants must take
specific actions directed at the plaintiff: (1) the defendant must be aware that its work
would be used for a particular purpose; (2) plaintiff must rely upon defendant's work; and
(3) there must be some conduct by the defendant "linking" it to the plaintiffs and
"evincing" its understanding of that reliance. Ossining Union Free School Dist. v.
Anderson LaRocca Anderson, 539 N.E.2d 91, 95 (N.Y. 1989).
Plaintiffs have not alleged that the work done by defendants was for a
specific purpose relating to Con Ed, nor that Con Ed was specifically intended as a
beneficiary of defendants' work, nor that Con Ed specifically relied on defendants' work.
The Amended Complaint alleges only that the Design Defendants did their work either
for the owners of 7WTC, or the various tenants of 7WTC, such as the City or Salomon,
now Citigroup. No special relationship to Con Edison is alleged.
New York has a stated policy restricting the duty of care owed by design
professionals to those in privity with them or enjoying a particular special relationship
when only property damage, and not personal injury, is alleged. See Eaves Brooks
Costume Co. v. Y.B.H. Realty Corp., 556 N.E.2d 1093, 1094 (N.Y. 1990). Thus, in
McGee v. City of Rensselaer, 666 N.Y.S.2d 949, 951 (Sup. Ct. Rensselaer County 1997),
the engineers involved in the planning and design of a highway interchange were held not
to owe a duty to an adjacent homeowner for negligently caused property damage. Noting
that "[c]ourts . . . have long differentiated between causes of action for personal injury
and other causes of action," the court recognized that "different public policy
considerations are involved," Id. at 952, and ruled that that the engineers did not owe a
duty of care to the homeowner. Id.
