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August 27, 2003


The opinion of the court was delivered by: Alvin Hellerstein, District Judge

These two cases arise out of damage sustained by owners and occupants of properties in the vicinity of the Twin Towers following the September 11, 2001 terrorist attacks. The plaintiffs allege that the City is liable for their injuries based on negligent inspection and storage of diesel tanks in 7 World Trade Center before the attacks and the City's activities in the disaster area for three months after the attacks. The City has brought motions to dismiss both these cases. I dismiss 02 Civ. 9762 as duplicative of 03 Civ. 3104, and also grant the City's motion as to 03 Civ. 3104 but give plaintiffs leave to replead.

I. Background

The two cases have been brought by Deutsche Bank Trust Company of America ("Deutsche Bank") (formerly known as Banker's Trust Company) and 134 of its purported corporate affiliates and subsidiaries who owned, occupied, and/or leased buildings located at 130 Liberty Street,*fn1 4 Albany Street,*fn2 and 4 World Trade Center.*fn3 Both cases make the same claims. [ Page 2]

Following the terrorist attacks of September 11, 2001, and through December 2001 (the "Response Period"), the City exercised control over the area surrounding the World Trade Center disaster site (called the "Frozen Zone"), including the area where the plaintiffs' properties were located, and prevented them from using, occupying, repairing, protecting, or cleaning their properties. Plaintiffs allege that the City was negligent in inspecting, controlling, and/or occupying space in 1, 2, 4, and 7 World Trade Center ("WTC") and in its activities in the Frozen Zone during the three months following the attacks.

On December 7, 2001, plaintiff Deutsche Bank (at that time, known as Bankers Trust Company), on behalf of itself, "its affiliates, subsidiaries, agents, successors, assigns, independent contractors, and vendors," served a Notice of Claim on the City, as required by sections 50-e and 50-i of New York's General Municipal Law. The Notice of Claim stated that the City's negligence in the design, construction, inspection, operation, and management of the Twin Towers preceding September 11 and in the post-attack recovery and reconstruction efforts led to the partial destruction of 130 Liberty, the collapse of 4 WTC, and damage to 4 Albany, and resulted in real and personal property damage, personal injury, and wrongful death therein. The Notice of Claim also stated that the claimant suffered damage to a lesser degree to its property at 14 Wall Street and 60 Wall Street. The initial estimate of losses was no less than $500 million.

The plaintiffs filed two cases on December 10, 2002, one in federal court — No. 02 Civ. 9762 — and one in state court by summons with notice. The state court case was removed by the defendant and docketed as No. 03 Civ. 0314. The complaints in both cases are identical except for the jurisdictional allegations contained in paragraphs 137 through 139. Count One of each case claims that defendants were negligent in placing diesel fuel tanks and other [ Page 3]

environmental contaminants in 7 WTC in violation of applicable laws and standards, in failing to ensure that appropriate measures were taken to protect plaintiff's property, and in its supervision of employees, agents, and contractors in the Frozen Zone during the Response Period. Count Two charges the City with negligence per se, and Counts Three and Four respectively charge the City with private and public nuisance; these counts are stated in conclusory fashion, relying on the same factual allegations underlying Count One.

II. Discussion

The City argues that 03 Civ. 3104 should be dismissed as repetitive of 02 Civ. 9762. The City further argues that both cases should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6), because they exceed the claims set out in the notice of claim filed with the City, because of the City's immunity from suit for conduct performed in its governmental functions, and on other grounds.

A. Dismissal of Repetitive Lawsuit

The City seeks the dismissal of the suit filed in state court and then removed to this court, No. 03 Civ. 3104, as duplicative of 02 Civ. 9762. The City argues that because the plaintiffs filed only a summons with notice in the state court, case No. 02 Civ. 9762 must be considered first filed even though the suits were instituted on the same day. The plaintiffs respond that the removed action should remain in the event that federal subject matter jurisdiction is ultimately rejected.

Because these two cases are essentially the same, one should be dismissed. See Howard v. Klynveld Peat Marwick Goerdeler, 977 F. Supp. 654, 664 (S.D.N.Y. 1997), aff'd, No. 98-9326, 1999 U.S. App. LEXIS 8402 (2d Cir. Apr. 16, 1999). Plaintiffs would prefer to dismiss case No. 02 Civ. 9762 and proceed with case No. 03 Civ. 3104, and I agree. Dismissal of No. 02 [ Page 4]

Civ. 9762 in favor of No. 03 Civ. 3014 may better preserve the right of plaintiffs to proceed in state court should this court or a court of appeals dismiss or remand for lack of subject matter jurisdiction. I need not address the City's technical arguments about which case qualifies as "first filed," for the two cases are at the same stage, subject to Rule 12(b)(6) motions to dismiss decided by this Order. See 800-Flowers, Inc. v. Intercontinental Florist, 860 F. Supp. 128, 133 (S.D.N.Y. 1994) ...

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