In this negligence action, plaintiffs allege that defendant Williams attacked plaintiff Michael [*2]Steinberg when he was entering a subway station, with saws from construction workers employed by a private contractor performing construction work on the track bed. Defendant New York City Transit Authority (NYCTA) and Five Star Electric Corp. (Five Star) move for summary judgment dismissing the action. The motion raises significant issues of liability, affected by the intersection of proprietary and governmental functions.

On January 5, 2007, plaintiff and his wife commenced this action against NYCTA, Five Star, and Williams. The complaint and bill of particulars allege that, on July 6, 2006, at approximately 3:30 a.m., defendant Taretyon Williams attacked plaintiff Michael Steinberg on the platform in the subway station at 110th Street and Broadway served by the Number 1 line.

Debra Joanne McGuyver, the station agent in the booth, testified at her deposition that she first noticed Williams as he came down the stairs to get on the train, because he came down with a big stuffed animal. Clausen Affirm., Ex L [McGuyver EBT], at 44. According to McGuyver, Williams came to the booth and stared at her. Id. McGuyver testified that she had asked Williams if she could help him, but Williams proceeded to stare at her for about five minutes, then swiped his Metrocard and went through the turnstiles and onto the platform. Id. at at 45-46.

McGuyver testified that she had seen Steinberg in the station prior to July 6, 2006. Id. at 42. She claimed that she saw him "every night faithfully, religiously" and that Steinberg would wait in front of the turnstiles, in front of the booth, until the train pulled in. Id. McGuyver testified that, on July 6, 2006, Steinberg purchased a 30 day unlimited Metrocard from her and waited in front of the turnstiles. Id. According to McGuyver, Williams then came through the turnstiles holding two yellow saws in his hand and attacked and stabbed Steinberg with the saws. Id. at 44. When asked what was the first thing she did when she saw Williams attacking Steinberg, she answered, "Screaming, hit the EBCS [the emergency booth communication system]." Id. at 48. McGuyver testified at her deposition that she saw Steinberg fall to the ground while Williams continued to stab him. Id. at 50. McGuyver testified that she saw a construction worker approaching the turnstiles, yelling at Williams, who then ran up the stairs with the saws. Id. at 49.

At his statutory hearing, Steinberg testified that, as he was about to enter the platform, he looked at Williams going through the turnstiles towards the booth, and that Williams looked at him but did not say a word. Clausen Affirm., Ex I, at 20. Steinberg claims that Williams then attacked him with the saws. Id. Steinberg testified at his deposition that he retreated as far back as he could go, but Williams kept coming at him. Clausen Affirm., Ex J, at 32. Steinberg testified that he begged for his life and offered his money. Id. at 33. According to Steinberg, after what he said felt like 15 minutes, Williams stopped and said, "Now I will take your credit cards and your money," and Steinberg answered, "I hope I have enough energy to give them to you." Id. at 34. Steinberg related that he gave all his money and credit cards to Williams, who then "very calmly walked up the stairs and left." Id.

Steinberg claims that none of the construction workers came to his aid. Id. at 38. Steinberg testified at his deposition that he learned after the attack that another subway passenger waiting on the uptown platform had come to his aid to stop his bleeding. Id. at 40.

Thomas Carroll, a Five Star employee, testified at his deposition that Five Star was a subcontractor hired to install new public address cabinets, new speakers on platforms, and customer information signs on platforms and in the mezzanine areas in 146 stations, which entailed, among [*3]other things, installing conduit. Clausen Affirm., Ex N [Carroll EBT], at 10. Based on daily reports, Carroll testified that removal work was taking place at the subway station on July 6, 2006 (id. at 35 41-42, 44, 85), which entailed "removal of the old speaker system, wire and conduit . . ." Id. at 44. According to Carroll, conduit would be removed by cutting with sawzalls (Id. at 45), which he described as a "mechanical sabre saw used to cut multiple materials." Id. at 11. Carroll testified that, on July 6, 2006, there were two sawzalls on the site that were battery operated. Id. at 45.

Carroll testified that he was present in the station on July 5, 2006, and that Five Star's work was scheduled to begin at 9:00 p.m. on July 5 and to be completed on July 6, 2006 at 5:00 a.m. Id. at 84. Carroll stated that he spent "an a hour and fifteen to an hour and a half" at the station, and he was there between 9:30 and 11:00 p.m. Id. at 86, 90. Carroll stated at his deposition that he saw Tommy Porr, another Five Star employee at the time, with a battery powered sawzall on July 5, 2006. Id. at 92.

Carroll testified that, on the next morning, July 6, 2006, he had received messages from Tommy Porr and David Benjamin, who was a Five Star sub-foreman working at the station. Id. at 94. Carroll spoke by telephone with Porr, who allegedly told Carroll:

"He [Tommy Porr] told me that, he called him a whack job, was on the platform talking to him. They were talking at him and he was hovering around walked and then walked away and he didn't pay him any mention. He came back when the train left, we were setting to go back to the bed. The one guy was down with the flagmen and the guy [Williams] ran over and grabbed the two sawzalls right in front of them. They were started [sic], they jumped in the track bed. He, the other guy, ran down the platform. When gathered the stuff together [sic], climbed out and started to go after the guy. He run [sic] out the exit and that he stabbed somebody with the saw."

"I really don't recall the details of it, just that, pretty much what happened; the train pulled out, they were going back in the track and the guy ran over and grabbed the sawzall and chased the guys. Everyone ran. When got their composure [sic], he saw them coming back at him and he ran and the guy got stabbed with the sawzall. They ran after him up the stairs but he was gone. They found one sawzall on the ground and one in the garbage pail.

Q.Did he, Mr. Benjamin, say where he was located when the assailant grabbed the sawzall?

A.I didn't ask him."

Five Star completed a "Foreman's 24 Hour Incident Report" dated July 6, 2006, which states, in pertinent part:

"Flag men instructed men to leave tracks for incoming train S/B. Men cleared up, put one lump hammer and two sawzalls on cart, while standing next to cart waiting [*4]for train to exit, passenger grabs sawzalls and trie [sic] to stick other riders and my men with too [sic] my men jumped onto tracks passenger with sawzall then proceeded out of turnstyl [sic] and stuck one more passenger with sawzall on unpaid side. Then he ran upstairs with both sawzalls and dump them into garbage can at 110th & Broadway. Call 911, police arrived at 3:27 am and started investigation.

(Dave Benjamin, Site Fmn)"

Clausen Affirm., Ex D. The report indicates the "foreman/subforeman" as "David Benjamin" and "general foreman" as "Tom Carroll." At his deposition, Carroll identified on the report "my handwriting on the bottom with my cell number written in." Id. at 111. He did not know if the other handwriting on the report was Benjamin's handwriting. Id. at 112. According to NYCTA and Five Star, the police later arrested Williams, who pled guilty to the attack and was sentenced to 18 years in prison.

The bill of particulars alleges that Steinberg sustained numerous and severe cuts to his chest, a broken rib, and a punctured lung from the attack. Plaintiffs allege that NYCTA and Five Star were negligent in their ownership, operation, maintenance, and control of the station. Clausen Affirm., Ex C ¶ 4. Plaintiffs also allege that defendants were negligent by failing to have security personnel, guards or police officers at the station; by failing to have proper security at the station; and by failing to supervise or monitor the construction site. Id.^[FN1] In addition, plaintiffs assert that defendants were negligent in failing to monitor and to secure dangerous tools and equipment on the train platform work site. Id. Plaintiffs assert that NYCTA and Five Star owed plaintiffs "a duty to keep the train station safe from any and all criminal activities." Id. ¶ 5.

NYCTA and Five Star now move for summary judgment dismissing the complaint.^[FN2]

The standards for summary judgment are well settled.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof [*5]in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action."

As a threshold matter, the Court rejects plaintiffs' argument that a motion for summary judgment must be supported by affidavits. "The fact that supporting proof was placed before the court by way of an attorney's affidavit annexing deposition testimony, rather than affidavits of fact on personal knowledge, does not defeat defendants' right to summary judgment." Gaeta v New York News Inc., 62 NY2d 340, 350 (1984).

NYCTA and Five Star maintain that they do not have a duty to protect a person in the subway from an assault by a third-party, absent facts establishing a special relationship between NYCTA and Five Star and the person assaulted. Assuming that a special relationship did exist, NYCTA and Five Star argue that Williams's attack was an unforeseeable event.

In opposition, plaintiffs argue that the "special relationship" analysis does not apply because NYCTA was acting in a proprietary capacity as a landlord, citing Miller v State of New York (62 NY2d 506 [1984]). Plaintiffs assert that NYCTA and Five Star were negligent in allowing two power saws to be left unattended (or improperly attended), so that Williams could take them and use them to attack Steinberg.

"Public entities remain immune from negligence claims arising out of the performance of their governmental functions, including police protection, unless the injured person establishes a special relationship with the entity, which would create a specific duty to protect that individual, and the individual relied on the performance of that duty." Miller v State of New York, 62 NY2d 506, 510 (1984).^[FN3] "The rule, however, has no application in cases where the State engages in a proprietary function." Schrempf v State of New York, 66 NY2d 289, 294 (1985). Accordingly, "[w]hen a public entity acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord." Doe v City of New York, 67 AD3d 854, 856 (2d Dept 2009), citing Miller, 62 NY2d 50, supra.

Contrary to NYCTA and Five Star's argument, Five Star does not enjoy governmental immunity. First, Five Star is a private, independent contractor and not a public entity. Second, construction work in a subway is considered proprietary, not governmental, in character. See Matter of Board of R.T. R.R. Commrs. of NY, 197 NY 81, 96 (1909)("the subway is a business enterprise of the city, through which money may be made or lost, the same as if it were owned by an ordinary railroad corporation. It was built by and belongs to the city as a proprietor, not as a sovereign."); see also City of New York v New York Tel. Co., 278 NY 9, 14 (1938)("construction of entrances to the [*6]subway was a proprietary activity of the city"); Sinsheimer v Underpinning & Found. Co., 178 App Div 495, 506 (1st Dept 1917)("the city in constructing the subway, through its contractor, was discharging a proprietary and not a governmental function"); New York & Queens Elec. Light & Power Co. v City of New York, 221 App Div 544, 547 (1st Dept 1927). Accordingly, none of Five Star's alleged acts or omissions enjoy governmental immunity.

As to NYCTA, the analysis is more complex, because "NYCTA is a common carrier that exercises both proprietary and governmental functions." Kadymir v New York City Tr. Auth., 55 AD3d 549, 549-550 (2d Dept 2008).

"Where the public entity serves a dual proprietary and governmental role, the analysis involves determining where, along the spectrum of proprietary and governmental functions, the defendant's alleged negligence falls. At one end of the spectrum are purely governmental functions undertaken for the protection and safety of the public pursuant to the general police powers.' These functions include the exercise of police and fire powers. At the other end of the spectrum lie proprietary functions in which governmental activities essentially substitute for, or supplement, traditionally private enterprises.' These activities include the exercise of maintenance and repair powers traditionally performed by private entities, such as a landlord. When a public entity acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord. To determine where along the spectrum the alleged negligence lies, [i]t is the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred which governs liability, not whether the agency involved is engaged generally in proprietary activity or is in control of the location in which the injury occurred.'"

Here, plaintiffs' bill of particulars alleges, in part, that NYCTA failed to have adequate or sufficient security personnel, guards or police officers at the train station, at the scene, or at the work site. Although the allegations could be viewed as alleging a breach of the common-law duty of a common carrier and a premises owner to take reasonable precautions against the criminal acts of third parties, it well settled that, for policy reasons, when such allegations are made against NYCTA, the courts have viewed them as falling squarely within NYCTA's governmental function. See Weiner v Metropolitan Transp. Auth.,55 NY2d 175, 178 -179 (1982).

"The New York City Transit Authority owes no duty to protect a person on its premises from assault by a third person, absent facts establishing a special relationship between the authority and the person assaulted. . . . Its immunity from such liability rests upon the same considerations as does the immunity of a municipality or other governmental body from liability for failure to provide adequate police protection, for the duty if one were recognized would necessarily implicate the Transit Authority police.

That the police and the common carrier activity (otherwise proprietary) are vested in the same entity will not lessen the crushing nature of the burden that would otherwise be imposed nor interfere less with the legislative-executive decision how to utilize [*7]such resources."

However, NYCTA and Five Star recognize that the immunity in Weiner does not extend to the situation where a NYCTA employee, seeing the injury inflicted, failed to summon aid without any risk to the employee. "Watching someone being beaten from a vantage point offering both safety and the means to summon help without danger is within the narrow range of circumstances which could be found to be actionable." Crosland v New York City Tr. Auth., 68 NY2d 165, 170 (1986). Here, paragraph 4 of the bill of particulars alleges that NYCTA and Five Star failed to come to Steinberg's aid during the attack. Plaintiffs argue that a triable issue of fact arises as to whether NYCTA was negligent in failing to summon help, because the police had not arrived on the scene "at least 10, but likely over 20 minutes" after the attack. O'Hagan Opp. Affirm.

Debra Joanne McGuyver, the station agent at the subway station at the time of Steinberg's attack, testified at her deposition that she witnessed the attack on Steinberg. McGuyver EBT, at 43. McGuyver testified that the first thing that she did when she saw Williams attacking Steinberg was to scream and hit the EBCS, the emergency booth communications system. Id. at 37, 48.When McGuyver was asked how long Williams had stabbed Steinberg, she answered,

"I don't know if I'm the best person to judge the time. Because it was such a frightening thing. But it seemed to go on for at least 15, 20 minutes, probably that long. But that's what it seemed like, because it was so terrifying."

Plaintiffs fail to raise a triable issue of fact as to whether McGuyver acted negligently in summoning help for Steinberg while he was attacked. McGuyver testified at her deposition that the first thing she did was to activate the emergency booth communications system when she saw Steinberg attacked. Plaintiffs submit no evidence disputing McGuyver's version of events. Plaintiffs only speculate that McGuyver had negligently failed to summon help because the police had not arrived sooner to the scene.

The remaining allegations pertain to NYCTA's and Five Star's alleged failure to secure dangerous tools at the work site, either by not locking up the tools and equipment, or by not monitoring the work site. NYCTA and Five Star argue that the decision of where to store construction materials falls within the "governmental function" of the spectrum discussed in Miller v State of New York, citing Clinger v New York Transit Authority (85 NY2d 957 [1995]).

As discussed above, the Court has ruled that Five Star does not enjoy governmental immunity because it was a private, independent contractor, and because subway construction work is regarded as proprietary, not governmental, in character. This analysis does not differ as to Five Star's alleged acts and/or omissions regarding the securing or storage of Five Star's own construction tools at the [*8]work site.

As to NYCTA, the analysis is not as straightforward. In Clinger v New York City Transit Authority (85 NY2d 975, supra), the plaintiff was attacked as she walked at rush hour through an isolated and little-used subway tunnel. At the time of this incident, the tunnel was undergoing renovations, and construction materials had been deposited at various locations within the tunnel. The assailant dragged the plaintiff behind a large metal plate which had been temporarily positioned against the tunnel wall, and then beat, raped, and robbed her. Eight months before the attack, the local community board had recommended to the New York City Transit Authority that the tunnel be closed.

The Appellate Division, First Department rejected the argument of governmental immunity, reasoning, "The act of placing the construction material, debris and the metal plate at the site of the attack was purely a routine act integrally related to the renovation project undertaken by the Authority in the capacity of a proprietary function." Clinger v New York City Tr. Auth., 201 AD2d 236, 239 (1st Dept 1994). However, the Court of Appeals determined that "Plaintiff's claim, in essence, is that a proprietary act (the location of the metal plate) intersected with a governmental act (the failure either to close the tunnel or to properly police it), to create the conditions under which she was attacked." Clinger, 85 NY2d at 959 (emphasis supplied). Thus, the Court of Appeals ruled, "Defendant's act was so overwhelmingly governmental in nature, however, as to place the source of its asserted liability well toward the governmental function' terminus of the Miller continuum." Id.Because Clinger involved the intersection of proprietary and governmental acts, Clinger does not stand for the proposition that the storage of construction materials is, in itself, a governmental function. As discussed above, subway construction is considered proprietary, not governmental, in character.

Nevertheless, Clinger is instructive. Like Clinger, two alleged acts and/or omissions intersected in the instant case to create the conditions under which Steinberg was attacked—the alleged availability of the sawzalls and the acts of the attacker. What plaintiffs assert as NYCTA's purported failure to safeguard Five Star's saws intersected with another purported failure to control the conduct of third persons who might harm others with the saws that were allegedly not properly secured.^[FN4] As discussed above, Weiner holds that NYCTA's protection of a person from the assault of third persons is a governmental function. Given that Steinberg's assault was the result of the intersection of an alleged proprietary function with an act/omission that must be considered a governmental function, this Court similarly rules that NYCTA's alleged conduct, as a whole, must [*9]fall "toward the governmental function' terminus of the Miller continuum" (Clinger, 85 NY2d at 959), and therefore NYCTA is immune from liability here.

As plaintiffs indicate, courts have recognized that premises owners have a common-law duty to take minimal safety measures with respect to inherently dangerous objects within the owner's custody or control. See Kush v City of Buffalo, 59 NY2d 26 (1983) (school had a common-law duty to take reasonable care to secure dangerous chemicals so that their unsupervised access could not be readily obtained by children); see Clinton v City of New York, 140 AD2d 404, 405 (2d Dept 1988)(hospital created a serious risk of harm to other patients when it permitted a patient to retain a pair of suture scissors next to her bed, which the patient used to stab others). However, Weiner instructs that the law concerning a private property owner's duty of protection is not a controlling factor as to whether the acts are considered proprietary or governmental functions. Weiner, 55 NY2d at 182; see also Miller, 62 NY2d at 514 (Kaye, J., concurring)("Although a commercial entity engaged in a particular activity may be required to furnish security guards, a governmental agency performing that same activity does not have the same obligation to assign police").

Therefore, the Court grants summary judgment dismissing the action as against NYCTA.

NYCTA and Five Star contend that Williams's attack was neither contemplated nor foreseeable and therefore Five Star did not breach any duty to Steinberg. NYCTA and Five Star cite cases where the courts held that that the criminal act of a third-party constituted a superseding or intervening act that broke the chain of causation between the plaintiff's injuries and NYCTA's alleged negligence, relieving it of liability as a matter of law. See e.g. Katz v Manhattan and Bronx Surface Tr. Operating Auth., 233 AD2d 231, 232 (1st Dept 1996); Falcone v Manhattan and Bronx Surface Tr. Operating Auth., 166 AD2d 271 (1st Dept 1990).

Plaintiffs argue that the risk of the foreseeability of the assault should be a question for the trier of fact. Plaintiffs assert that the saws are inherently dangerous and that the saws were unattended or improperly secured. Accordingly, plaintiffs maintain that "the risk that the power saws would be taken by an unauthorized party was foreseeable, and a risk for which defendants had a duty to protect." O'Hagan Opp. Affirm. Plaintiffs analogize this case to Kush v City of Buffalo (59 NY2d 26, supra) and Bell v Board of Education of the City of New York (90 NY2d 944 [1997]).

"Under New York law, the issue of foreseeability is usually analyzed in considering whether one member of society owes a duty of care to another. . . . . However, foreseeability also plays a key role in the doctrine of superseding causation." Lapidus v State of New York, 57 AD3d 83, 95 (2d Dept 2008). If Five Star did not owe a legal duty to Steinberg, then one does not reach the issue of causation. If Five Star owed a duty to Steinberg, then, given the duty owed under the circumstances, one must consider whether Williams's assault constituted a superseding or intervening act. Plaintiffs' argument that foreseeability should be a factual issue is flawed to the extent that it presupposes that a duty exists. See Haymon v Pettit, 9 NY3d 324 (2007).

When the issue is whether a legal duty is owed, "[f]oreseeability, alone, does not define duty-it merely determines the scope of the duty once it is determined to exist." Matter of New York City Asbestos Litigation, 5 NY3d 486, 493 (2005). Courts traditionally "fix the duty point by balancing factors, including the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and reparation allocation, and public policies affecting the expansion or limitation of new channels of [*10]liability." Hamilton v Beretta U.S.A. Corp., 96 NY2d 222, 232 (2001).

Five Star has not demonstrated entitlement to summary judgment dismissing the complaint. On the record presented, the Court cannot determine, as a matter of law, that Five Star did not owe Steinberg a duty of care under the circumstances, because the record as to Five Star's conduct on July 6, 2006 is based entirely upon hearsay.

McGuyver testified at her deposition that the station booth faced toward the stairs leading into the station. McGuyver EBT, at 12. When asked if she could see the platform from where she was, she answered,

"I can only see where the turnstiles are because the booth faces towards the stairs and the platform is toward the right of the booth, toward the side of the booth, like where the door is, so it cuts my real view of the entire platform, but the platform where the turnstiles are."

Carroll testified at his deposition that he did not witness the incident. Carroll EBT, at 42. NYCTA and Five Star also relied upon the deposition of Steven Smith, who testified at his deposition that he had never been to the 110th Street subway station "while Five Star Electric's work was being performed on or before July 6, 2006." Clausen Affirm., Ex M, at 21. Although the Foreman's 24 Hour Incident Report appears to be a business record, the statements contained therein—classic "hearsay within hearsay"—must fall within recognized exceptions to the hearsay rule to be considered. See Flynn v Manhattan & Bronx Surface Tr. Operating Auth., 61 NY2d 769, 781 (1984). In addition, at his deposition, Carroll was not able to identify whether David Benjamin, an alleged witness to the events on the platform, had filled out the description of the accident on the incident report. Carroll EBT, at 112. Hearsay evidence cannot meet the prima facie burden of showing entitlement to an award of summary judgment. Ji v Rockrose Dev. Corp., 34 AD3d 253, 254 (1st Dept 2006).

Moreover, even if the Court were to consider the hearsay testimony, the hearsay testimony of Carroll indicates that Five Star employees might have believed that Williams was mentally unstable, perhaps even aggressive. Carroll testified at his deposition, "He [Tommy Porr] told me that, he called him a whack job, was on the platform talking to him. They were talking at him and he was hovering around walked and then walked away and he didn't pay him any mention." Carroll EBT, at 95. Carroll further testified as follows:

"Q.Did Tommy Porr indicate if he saw the assailant before speaking to him?

A.No, the guy was walking the platform yelling.

Q.Did Tommy tell you as he was handing down the tools, the assailant walked away?

Ms. SHEEHAN: Objection to form.

A.He said he was there a while. He didn't give me a time. The guy was there, walked down the platform, walked back, a typical nut that we see all the time down there."

In N.X. v Cabrini (97 NY2d 247 [2002]), the Court of Appeals held that "observations and information known to or readily perceivable by hospital staff that there is a risk of harm to a patient under the circumstances can be sufficient to trigger the duty to protect." In that case, a surgical resident sexually assaulted the plaintiff while she was in a hospital recovery room still under the effects of anesthesia; plaintiff awoke to find the surgical resident manually penetrating her and repeatedly asked him to stop. Nurses were in close proximity to the plaintiff's bed; the surgical resident was not one of the physicians listed on plaintiff's chart and not known to the nurses in the recovery room. The Court of Appeals rejected the hospital's argument that the sexual assault of a patient by a physician, having no known history of sexual misconduct, was a risk so remote that, as a matter of law, it can never be reasonably foreseeable. The Court of Appeals stated,

"We do not disagree with that general conclusion insofar as it relates to the theoretical and unknown possibility of an attack taking place in the absence of a defendant's prior knowledge of an employee's dangerous propensities. However, this reasoning should not be used in this case to preclude a hospital's liability for actually observed or readily observable misconduct committed in the very presence of hospital employees."

That a duty to protect in N.X. v Cabrini was triggered based on "observations and information known to or readily perceivable" by employees raises the issue of whether a duty to protect could be triggered under the circumstances in this action. In some respects, N.X. v Cabrini appears to be based on the duty of a hospital to safeguard the welfare of its patients. Id. at 254 ("We emphasize that our holding today does not establish a broader duty than that historically placed upon hospitals to their patients"). However, the Court of Appeals's reasoning could be applicable in other factual contexts, where a duty at issue is, as the Court of Appeals indicated, "a sliding scale of duty." Id. at 253. The Court of Appeals did not expressly limit its holding only to hospitals.

In Waldon v Little Flower Children's Service (308 AD2d 320 [1st Dept 2003], revd 1 NY3d 612 [2004]), the Appellate Division applied N.X. v Cabrini to a case that did not involve the duty of a hospital to its patients. In Waldon, the plaintiff, a foster mother, was stabbed by the biological mother of the foster child outside the entrance of a foster care agency. The stabbing had occurred immediately after a scheduled visit of the biological mother with the agency, recently after the agency had instituted a proceeding to terminate the biological mother's parental rights on the ground of the biological mother's mental illness. The biological mother had a history of noncompliance with treatment and, according to the agency's caseworker, was agitated and behaving erratically during the visit. Citing N.X. v Cabrini, the Appellate Division, First Department ruled that, "This confluence of factors' raises an issue of fact as to whether the attack was reasonably foreseeable, triggering the need for protective action.'" Id. at 320.

On appeal, the Court of Appeals declined to rule on whether, under N.X. v Cabrini, the foster care agency could owe the foster mother a duty to protect. Instead, the Court of Appeals ruled that "assuming the agency owed the foster parent a duty of care, no evidence was proffered raising a question of fact on the issues of breach or causation." Waldon, 1 NY3d at 533. The Court of Appeals noted that the biological mother had no history of violence, had not threatened agency staff or the [*12]foster parent in the past, and the Court of Appeals noted the suddenness of the attack and its location. Id.

This Court need not reach the issue of whether Five Star could have had a similar duty to protect following the reasoning of N.X. v Cabrini (97 NY2d 274, supra), because there is no competent evidence of Five Star's and Williams's conduct on the platform. Even based on the hearsay testimony, it is not clear whether Williams had threatened Five Star's employees on the platform before he allegedly grabbed the sawzalls.

Without being able to determine whether Five Star owed a duty of care to Steinberg under the circumstances, and without being able to determine the scope of such a duty, the Court cannot determine, as matter of law, whether the assault was a superseding or intervening act. "When the intervening, intentional act of another is itself the foreseeable harm that shapes the duty imposed, the defendant who fails to guard against such conduct will not be relieved of liability when that act occurs." Kush, 59 NY2d at 34. Thus, the criminal conduct of a third person would not preclude a finding of proximate cause' if the intervening agency was itself a foreseeable hazard of the duty that was breached. Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520-521 (1980).

Accordingly, it is hereby

ORDERED that the motion for summary judgment by defendants New York City Transit Authority and Five Star Electric Corp. is granted only to the extent that the complaint is severed and dismissed as against defendant New York City Transit Authority, with costs and disbursements to this defendant as taxed by the Clerk, the Clerk is directed to enter judgment in this defendant's favor accordingly, and defendants' motion is otherwise denied; and it is further

ORDERED that the remainder of the action shall continue.

Dated: September 20, 2010

New York, New York

ENTER:

/s/

J.S.C.