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    Arent Fox is Protecting Protectors

    On the afternoon on September 11, 2001, one of the darkest days in American history, in Lower Manhattan, just hours after the fall of the Twin Towers on the World Trade Center, a third building – the 47-story 7 World Trade Center – also collapsed. The collapse of the Twin Towers had unleashed tons of steel and concrete, which rained down on the surrounding buildings, including 7WTC, causing enormous damage. Additionally, the fires that had engulfed the Twin Towers spread to 7WTC.

    The fires in 7WTC continued all day. Approximately seven hours after the Twin Towers fell, 7WTC itself collapsed at 5:21pm. Miraculously, there were no fatalities at 7WTC, as the building had been fully evacuated shortly after the hijacked planes had hit the Twin Towers.

    The destruction of 7WTC destroyed a power substation operated beneath the building by the Consolidated Edison Company of New York, Inc. (Con Ed). This included nine transformers and related equipment housed in the substation.

    On September 10, 2002, Con Ed filed a lawsuit in the Southern District of New York against the Port Authority of New York and New Jersey and the City of New York, alleging that the City’s negligence contributed to the collapse of 7WTC and the destruction of Con Ed’s substation.

    Specifically, Con Ed alleged that the City of New York — which leased premises at 7WTC for its Office of Emergency Management — had incorrectly designed, built and maintained an emergency generator system, including backup diesel fuel tanks in the building, and the fuel in those tanks contributed to the fires and collapse of the tower, destroying the Con Ed substation beneath.

    To defend against Con Ed’s claims, the City of New York turned to two of the leading construction law litigators in the nation, Gene Scheiman and Jamie Frankel. Gene and Jamie, together with Mark Bloom, all now partners in Arent Fox’s construction law, real estate and litigation practice groups, immediately tackled Con Ed’s allegations to prove to the court that the suit against the City should be dismissed. The Arent Fox attorneys argued that the City was statutorily immune from the lawsuit because the City had established the Office of Emergency Management at 7WTC in the 1990s as a “civil defense” measure under the State Defense Emergency Act, passed in 1951. The Act shielded state and local governments from any lawsuits arising out of certain actions taken related to civil defense.

    The US District Court for the Southern District of New York agreed with Arent Fox and dismissed the suit against the City.

    The creation of the OEM command center and its backup generator system qualifies as a civil defense measure,” wrote US District Judge Alvin Hellerstein. “It is clear that the City created its OEM command center in anticipation of an attack.’” Although Mayor Giuliani may not have been aware of “any particular imminent threat” when he ordered the creation of the command center at 7WTC, the judge wrote, “he nevertheless concluded, reason-ably and with responsible foresight, that a terrorist attack of some sort in New York was foreseeable.”

    In conclusion, the judge held that the construction of the command center, the backup generator system, and the installation of the diesel fuel tanks at 7WTC were “good faith efforts” taken by the City of New York to provide for the civil defense of New York. “The Complaint against the City is dismissed,” the judge ruled, granting the City of New York a complete victory.

    To read more about Arent Fox’s work representing the City of New York in the litigation arising out of the collapse of 7 World Trade Center on September 11, 2001, please click here.