(dissenting in part). I agree with the majority opinion that the trial court should not have permitted the jury to find the defendant negligent because (i) they allegedly violated section 83 of the Multiple Dwelling Law and (ii) they actually failed to maintain a locked-chain device. I would further find that the trial court erred in refusing to charge that plaintiff Fred Loesser might be contributorily negligent. If the defendants are to be held liable for permitting dangerously dark conditions to exist in the parking lot, then a question is presented as to whether Fred, aware of those conditions for an extended period of time, acted negligently in continuously exposing himself to that peril. (See, generally, Ann. 23 ALR3d 365, Premises Liability: Proceeding in the Dark on Outside Steps or Stairs as Contributory Negligence; Ann. 23 ALR3d 441, Premises Liability: Proceeding in the Dark Across Exterior Premises as Contributory Negligence.) Moreover, a question of fact is presented for the jury as to whether Fred, through his negligence, exacerbated the situation by inadvisedly throwing hot coffee in the face of an assailant who was carrying a shotgun. At the very least, these errors require that a new trial be ordered.
The central point of disagreement in this appeal is whether defendants may be held liable for failing to provide adequate lighting on the night of the occurrence. The majority opinion would permit liability to be promulgated against the defendants on that theory. It suggests that the defendants were not required to take any other protective measures on Fred’s behalf. It further hints, without directly stating so, that defendants would not be liable if this same incident had occurred in daylight hours. As will be more fully developed below, the defendants had no duty to protect plaintiff Fred *194Loeser in the circumstances of this case. Moreover, defendants’ failure to maintain the subject lights was not the proximate cause of Fred’s injuries (see, generally, Ann. 43 ALR3d 331, Landlord’s Obligation to Protect Tenant Against Criminal Activities of Third Persons).
Plaintiff Fred Loeser argues that the defendants should have reasonably foreseen that he would be assaulted in the parking lot on the evening of January 19, -1975. While this parking lot was situated in a low-crime area in Riverdale, it was foreseeable that Fred might be robbed and assaulted there. Of course, it is foreseeable that any resident of New York City might at any time and in any place become a crime victim. Thus, a debate over the statistical probabilities of an assault on Fred’s person on the night under discussion serves little purpose.
The real issue presented to this court has been aptly phrased by the Supreme Court of New Jersey in Goldberg v Housing Auth. of City of Newark (38 NJ 578, 583):
"The question whether a private party must provide protection for another is not solved merely by recourse to 'foreseeability.’ Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide 'police’ protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arms of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist to provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable.
"The question is not simply whether a criminal event is foreseeable, but whether a duty exists to take measures to guard against it. Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.”
Plaintiff Fred Loeser was a tenant in Nathan Hale Gardens, a New York City Mitchell-Lama development. The mere relationship of landlord and tenant in this type of housing development does not, in itself, create any special duty upon the landlord to protect the tenant. (Cf. Bass v City of New York, 38 AD2d 407, affd 32 NY2d 894.) Furthermore, this record *195does not reflect the existence of any rental agreement or agency regulation that would require defendants to provide special protection to the plaintiffs in this parking lot.
However, the evidence does show that Fred and his father were paying no more than $13.50 per month, or $.40 per day, for parking privileges at this site. This rental fee is a small fraction of the figure normally charged for the use of an outdoor parking lot in Bronx County or any other section of New York City. Undoubtedly, this minimal rental charge was an additional benefit of residing in this moderately priced housing development. For the very small rental fee charged, the defendants could not be realistically expected to provide security for this parking lot.
In fact, plaintiffs’ proof does not indicate that the tenants were ever promised security while parking their vehicles in this lot. Instead, an analysis of the proof indicates that plaintiff Fred Loeser and the other tenants were simply renting space to park their vehicles at a prohibitively low fee. Although statutory or case law might require the defendants to provide lights to ensure that tenants do not injure themselves upon the physical hazards present in the lot (see, generally, 5B Warren’s Negligence, Darkness, § 2, p 545), I find that the defendants had no independent duty, as such, to protect the plaintiffs. Under the criterion set forth in Goldberg v Housing Auth. of City of Newark (38 NJ 578, supra), it would be unfair to require the defendants to provide lights or any other security for the tenants in this lot. In view of the economic realities of this parking arrangement, the tenants parked at their own risk just as if they were parking on a public street. Parenthetically, I note that the tenants could not park at meters on most public streets for $.40 per day.
As the majority opinion stresses, there was proof in the record that the subject lights were not operative at the time of the occurrence. A violation by the defendants of subdivision 7-a of section 26 of the Multiple Dwelling Law and section D2619.07 of the Administrative Code of the City of New York would prima facie establish their liability in this case if that violation were the proximate cause of Fred’s injuries (Mermelstein v 417 Riverside Drive, 25 AD2d 522; Schabel v Onseyga Realty Co., 233 App Div 208; Wolf v Kaufmann, 227 App Div 281, app dsmd 254 NY 598). However, assuming the defendants violated subdivision 7-a of section 26 of the Multiple Dwelling Law and section D26-19.07 of the Administrative *196Code, that violation did not cause the assault upon plaintiff Fred Loeser.
Any violation on defendant’s part was merely an "occasion” for the assault (cf. Sheehan v City of New York, 40 NY2d 496, 503; 57 Am Jur 2d, Negligence, § 146, p 502). As has often been stated, no one is ordinarily chargeable with damages because he has not anticipated the commission of a crime by some third party (Saugerties Bank v Delaware & Hudson Co., 236 NY 425, 431). Therefore, while defendants’ negligence might have made the assailant’s attempt at robbery less difficult to accomplish, that negligence was not the proximate cause of the attempted robbery or the subsequent assault (57 Am Jur 2d, Negligence, § 206, p 581). Clearly, the acts of the assailant were the intervening and supervening cause of Fred’s injuries. In a different factual setting, the Supreme Court of North Carolina found that a carrier was not liable to a passenger assaulted upon a train that was unlighted and overcrowded. In dismissing the action, that court similarly found that there was no causal connection between the negligent act of the carrier and the plaintiff’s injury (Chancey v Norfolk & Western Ry. Co., 174 NC 351).
For the foregoing reasons, the judgment of the Supreme Court, Bronx County (Chananau, J., and a jury), entered April 25, 1978, should be reversed, on the law, and the complaint should be dismissed.
Silverman and Ross, JJ., concur with Sandler, J.; Murphy, P. J., dissents in part in an opinion.
Judgment, Supreme Court, Bronx County, entered on April 25, 1978, reversed, on the law, and the case remanded for a new trial, with $75 costs and disbursements of this appeal to abide the event.