6
In addition to the City's motion, the defendants named in 04 Civ. 7272
have also moved to dismiss, arguing that the Complaint does not state a legally sufficient
claim for relief on its face. Defendants argue that, as a matter of law, defendants did not
owe a duty to plaintiffs, and that defendants' acts were not the proximate cause of Con
Ed's damage. Defendants advance other grounds as well. Citigroup argues that it was
released from liability as an intended beneficiary of the lease between Con Ed and the
Port Authority, and that the Port Authority's exercise of control over the construction of
the Citigroup premises precludes any negligence claims against Citigroup based on such
construction. The design professionals (primarily the architects and engineers who
designed 7WTC, and the design and construction contractors that built the premises
leased by Citigroup and the City) argue that the Complaint should be dismissed because
they did not owe a duty to plaintiffs and for various other reasons.
II.
T
HE
C
ITY OF
N
EW
Y
ORK
'
S
M
OTION FOR
S
UMMARY
J
UDGMENT
The Complaint of Con Ed's insurers against the City alleges that the City
was a tenant of 7WTC, that its Office of Emergency Management ("OEM") occupied the
23rd floor of 7WTC to function as a command and control center for emergencies, that a
6,000-gallon diesel fuel tank located below 7WTC, and a 275-gallon day tank on the 7th
floor of 7WTC, were used as an independent supply of power to the command and
control center, and that the City's negligence in designing and maintaining the diesel fuel
emergency backup generator system enabled the fires that consumed 7WTC to continue,
causing the building to collapse and the Con Ed substation to be damaged. Plaintiffs sue
to recover for damage to the substation.
On November 30, 2004, the City moved to dismiss the Complaint based
