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It is early in the case. The Owning and Managing Defendants have not yet
filed answers, or alleged affirmative defenses. Discovery has not yet been pursued. The
plaintiffs in this action, the subrogated insurers of Con Ed, potentially fall within the class
of persons entitled to expect due care from the Owning and Managing Defendants. The
extent of that duty, and its possible qualification by circumstance or by contract, or, for
example, by the Con Ed Lease, and possible other contracts, must be explored.
Accordingly, the motion of the Owning and Managing Defendants to
dismiss the negligence claims against them is denied. However, for the reasons stated in
my discussion of the motions by the Port Authority and Citigroup, the count asserting
negligence per se against the Owning and Managing Defendants is dismissed.
D. The Motion to Dismiss the Products Liability Claims
Plaintiffs' Sixth, Eighth, and Tenth Causes of Action assert products
liability claims against the Design and Construction Defendants. Under New York law,
"no action in breach of implied warranty or strict product liability will lie for the
negligent performance of professional services" in service-oriented contracts, such as
agreements to render architectural or design services. Barnett v. City of Yonkers, 731 F.
Supp. 594, 601 (S.D.N.Y. 1990) (citing Stafford v. International Harvester Co., 668 F.2d
142, 146 (2d Cir. 1981). Plaintiffs try to avoid this rule by alleging that certain of the
Design and Construction Defendants provided more than mere "design services." The
effect is without merit, at least for the most part.
The Court of Appeals has held that any professional "hybrid transactions
along the sales-services continuum" must be assessed, "both legally and pragmatically,"
on a case-by-case basis. Milau Associates, Inc. v. North Avenue Development Corp.,
