Rawlins v. Manhattan & Bronx Surface Transit Operating Authority , 648 N.Y.S.2d 610 ( 1996 )

—Orders, Supreme Court, Bronx County (Douglas McKeon, J.), entered July 19, 1994, which granted defendant’s renewed motion for summary judgment dismissing the complaint and denied plaintiff’s motion to preclude defendant from offering certain evidence at trial, unanimously affirmed, without costs.

The complaint was properly dismissed, defendant Manhattan and Bronx Surface Transit Operating Authority being shielded from liability in these circumstances. The essence of plaintiff’s claim clearly concerns passenger security, i.e., failure to prevent plaintiff from being pushed out the window, such that defendant’s governmental function may be invoked (see, Rivera v New York City Tr. Auth., 184 AD2d 417). Since plaintiff does not contend that defendant owed him any special duty in regard to passenger safety, defendant cannot be held liable for the intentional attack perpetrated upon him by a third party (supra). Further, the requisite element of proximate cause is absent herein.

We note that, in light of this disposition, the motion court properly denied plaintiffs motion for preclusion as academic. Concur—Rosenberger, J. P., Wallach, Kupferman, Nardelli and Mazzarelli, JJ.