51
Defendants Grace Construction and Fiberlock are alleged to have "manufactured . . . the
fireproofing system associated with the OEM center." (Am. Compl. 7272 ¶¶ 50, 52.)
ABCO Peerless is alleged to have "manufactured . . . the sprinkler system associated with
the OEM center." (Am. Compl. 7272 ¶ 58.) Though these allegations are less specific
than those alleging manufacture of products, the allegations might be consistent with a
products liability claim. In Milau for example, the defendant had designed and installed a
sprinkler system. The Court of Appeals held that the transaction was predominantly a
service contract, but did so only after a record was fully developed at trial. See Milau,
368 N.E.2d 1247. Plaintiffs will be required at the outset of discovery to set out their
specific claims of defects, as was just stated. The motion to dismiss Counts Six, Eight,
and Ten against these defendants is denied.
VI.
C
ONCLUSION
For the reasons stated, the motion of the City of New York to dismiss the
Complaint in 02 Civ. 7188 is granted, and the motion of the Port Authority to dismiss the
same is denied in part and granted in part. The Port Authority remains as a defendant in
02 Civ. 7188 as to Count One alleging negligence.
As to the Amended Complaint filed in 04 Civ. 7272 against the owners,
lessors, and design and construction professionals who designed and built 7WTC, I hold
as follows: the motion by Citigroup to dismiss Count Three is denied, and the motion to
dismiss Count Four is granted; the motion by the Design and Construction Defendants to
dismiss the negligence claims set forth in Counts Five, Seven and Nine is granted; the
motion by the Design and Construction Defendants to dismiss the products liability
claims set forth in Counts Six, Eight and Ten is granted in part and denied in part; and the
