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where no privity or special relationship exists as between the plaintiff and the defendants
and where only property damage is alleged, the claims against the Design Defendants are
dismissed.
2. The Construction and Contractor Defendants
Plaintiffs also make specific allegations against the Construction and
Contractor Defendants, alleging that these defendants were negligent in the design and
construction of 7WTC, and that this negligence caused structural defects that led to the
collapse of 7WTC. As previously discussed, absent a special relationship between the
parties, no duty is owed to the public at large or to those outside the class of people
entitled to expect the actor's due care to them. Waters, 505 N.E.2d at 924. Where
contractual privity is absent, the plaintiff must establish that "the functional equivalent of
privity of contract arose between themselves and [defendant] as a result of [the
defendant's] actions." Melnick, 745 N.Y.S.2d at 69. In this instance, Con Ed was not in
either contractual or functional privity with the named defendants, and there is no
allegation that would yield an inference of privity.
The Eaves Brooks case provides further insight as to the absence of such a
duty. 556 N.E.2d 1093. Eaves Brooks involved an action by a commercial tenant against
two companies under contract with the building's owners to inspect the sprinkler system
and to maintain an alarm system to recover for property damage sustained when the
building's fire sprinkler system malfunctioned. Id. at 1094. The court held that the
companies that inspected the sprinkler system and maintained the fire alarm system did
not owe the commercial tenant a duty of care. Id. The court recognized that such
holdings "`may at times result in the exclusion of some who might otherwise have
