Burl Walls et al., Appellants, v. Krasdale Foods, Inc., Respondent. (And a Third-Party Action.)

Burl Walls et al., Appellants, v Krasdale Foods, Inc., Respondent. (And a Third-Party Action.) [697 NYS2d 612] [MAJORITY] —Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 5, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. The motion court properly determined that plaintiffs injuries were not attributable to defendant’s conduct but to the intervening and superceding act of an unknown assailant (see, Harris v New York City Hous. Auth., 187 AD2d 362). Nor, even if proven, would plaintiffs status as a special employee of defendant have given rise to a duty on defendant’s part to protect him from the acts of a third party, such as his assailant, beyond defendant’s authority and control (see, Purdy v Public Adm’r of County of Westchester, 72 NY2d 1, 8). Moreover, plaintiffs receipt of workers’ compensation benefits would, in any event, require dismissal of the complaint against the special employer (Thompson v Grumman Aerospace Corp., 78 NY2d 553; Maldonado v Canac Intl., 258 AD2d 415). Concur— Ellerin, P. J., Williams, Wallach, Buckley and Friedman, JJ.