(dissenting). Plaintiffs, an infant and his mother, who sues both in her representative capacity and derivatively, seek to recover damages for personal injuries suffered by the infant, a pedestrian on a public sidewalk in front of the premises owned by defendants Lefran Realty Corp., Calvin Polivy and Bernice Polivy, as a result of a gunshot would inflicted by a criminal assailant, who apparently fired the shot from a rented streetfront store in defendants’ premises.
On this appeal from the grant of summary judgment in favor of these defendants dismissing the complaint, plaintiffs argue that they made out a prima facie showing of negligence because defendants knew or should have known that the tenant was operating an illegal drug business in the store; that defendants failed to take any action to evict the tenant on the basis of such activity; and that defendants’ alleged failure to take such action was the proximate cause of the infant plaintiff’s injuries.
*178Even assuming the validity of these factual allegations, which are vigorously disputed, plaintiffs fail to state a claim in negligence because, under the circumstances of this case, defendants did not owe them any duty. In addition, the shooting by a criminal assailant was an intervening act, which, as a matter of law, serves to break any causal connection between defendants’ alleged negligence and the infant plaintiff’s injuries. Thus, I would affirm the order granting defendants’ motion for summary judgment.
It is axiomatic that, absent a duty of care owed by the defendant to the plaintiff, there can be no recovery on a theory of negligence. (Pulka v Edelman, 40 NY2d 781, 782.) It is for the courts, in the first instance, to determine as a threshold matter whether the alleged tort-feasor owes a duty of care to the injured party. (Waters v New York City Hous. Auth., 69 NY2d 225, 229.) "It is often said that '[p]roof of negligence in the air * * * will not do’ * * *. What this maxim suggests, simply put, is that the concept of a duty of care, which is essential to the law of negligence, has meaning only when it is considered in relation to both the harm that the duty exists to prevent and the class of individuals to whom it is owed. * * * The question of the scope of an alleged tort-feasor’s duty is, in the first instance, a legal issue for the court to resolve.” (Supra, at 228-229.)
The Court of Appeals has long recognized, as a policy matter, that courts have a responsibility " 'to limit the legal consequences of wrongs to a controllable degree’ ” (Strauss v Belle Realty Co., 65 NY2d 399, 402; see also, Waters v New York City Hous. Auth., supra, 69 NY2d, at 229), and thus to avoid the facile and expedient in molding the concept of duty to any particular case. In determining whether a duty exists, the Court of Appeals has consistently looked to the relationship, if any, between the defendant and the person who caused the harm or between the defendant and the injured party. In Pulka v Edelman (supra), for instance, the court set out the following guidelines for the imposition of a legal duty on one party to control the conduct of another: "(1) '[t]he relationship between the defendant and the person who threatens the harm to the third person may be such as to require the defendant to attempt to control the other’s conduct’ or (2) 'there may be a relationship between the defendant and the persons exposed to harm which requires the defendant to afford protection from certain dangers including *179the conduct of others’ ”. (40 NY2d, at 783; see also, Waters v New York City Hous. Auth., supra, 69 NY2d, at 229-230.)
In Waters (supra), the plaintiff, a passerby, was accosted on the sidewalk outside of one of the defendant’s housing projects and thereafter, at knifepoint, taken through an unlocked door into one of the buildings and forced to the roof, where she was robbed of her money and sexually assaulted. The Court of Appeals affirmed the grant of summary judgment in the defendant’s favor, finding, as a matter of law, that the defendant landowner did not owe any duty to the plaintiff. The court held that "[b]ecause defendant landowner had no relationship at all to the as-yet-unidentified wrongdoer whose presence on the street posed a threat to plaintiff’s safety * * * and because this injured plaintiff had no association with the premises independent of the crime itself, the landowner’s duty to maintain the security of the building may not be deemed to extend to her. This conclusion alone is fatal to her claim, regardless of whether the ultimate harm could be found to be reasonably foreseeable”. (Supra, at 230-231.) The court found it significant that the landowner had "no control over either the acts of the primary wrongdoer or the conditions on the public byways that make such acts all too commonplace” and that defendant and other landowners would be exposed to "virtually limitless liabilities” if their legal obligations were extended to the plaintiff and all others in her position. (Supra, at 230.)
In Einhorn v Seeley (136 AD2d 122, appeal dismissed 72 NY2d 914), upon which the motion court properly relied in granting defendants summary judgment, this court established a two-pronged test to determine whether a landowner had a duty to protect an injured plaintiff from the criminal acts of a third party. Noting that "[t]here will ordinarily be no duty thrust on a defendant to prevent a third party from causing harm to another”, this court held, "The exception may occur in the case where a special relationship exists between the defendant and the third person so as to give rise to a duty to control, or alternatively, when a special relationship exists between the defendant and the victim which gives the latter the right to protection * * *. Thus, such special relationships have been held to include employers-employees, owners and occupiers of premises, common carriers and their patrons, and hosts who serve alcoholic beverages to their guests, among others”. (Supra, at 126.)
Not only is there an absence of any relationship here *180between defendant landowners and the assailant or the victim, but the infant plaintiff was not even injured on defendants’ premises. This is a significant circumstance further removing defendants from the sphere of a legal duty owed to plaintiffs. In the absence of any of these key relational elements, there is no basis upon which to impose a duty of care giving rise to tort liability. Indeed, to hold otherwise would be to ignore the teaching of the Court of Appeals (see, Waters v New York City Hous. Auth., supra; Pulka v Edelman, supra; see also, Strauss v Belle Realty Co., supra, 65 NY2d, at 403) and to create, contrary to public policy, an oppressive and unmanageable tort liability exposure. Where a duty of care does not exist as a matter of law, further fact finding is unnecessary and summary judgment dismissing the complaint should be granted.
Plaintiffs argue, and the majority holds, that the injury to the infant plaintiff was foreseeable in light of the alleged illegal use of the rented premises. Foreseeability, however, "should not be confused with duty”; foreseeability is used to define the scope of the duty but only after it has been determined that a duty exists. (Pulka v Edelman, supra, 40 NY2d, at 785.)
The majority holds that the "common law of long standing” —"the duty of the owner of a building, abutting upon a public street, to maintain it in such a condition that it shall not become dangerous to the traveling public” (Appel v Muller, 262 NY 278, 280) — establishes that the defendant landlords owed a duty to plaintiffs. This theory, however, has historically been limited to requiring the landlord to maintain the property itself — the structure or the land — in a safe condition and has never been extended to impose liability for a dangerous use of the premises, e.g., an alleged illegal drug operation.
While, as the majority notes, under Real Property Law § 231 (2) the owner of real property who knowingly permits the use of the property for any unlawful trade, manufacture or business is "liable * * * for any damage resulting from such unlawful use”, we are unaware of any instance where this statute has been applied to impose tort liability for the acts of a third party who has no relation to the premises. Nor is there any authority to suggest that the Legislature ever intended such a result.
In addition to the absence of any legal duty owed to plaintiffs by defendants, the nature of the underlying tortious *181conduct — a shooting assault by a criminal assailant — provides an independent basis for dismissing plaintiffs’ claims. The shooting of the infant plaintiff on the sidewalk in front of defendants’ premises, even though related to some unauthorized, illegal activity within, constitutes a superseding, intervening act which breaks the chain of causation between any alleged negligence on defendants’ part and the injury to the infant plaintiff.
Plaintiffs allege, essentially, that defendants failed to take any action to evict a known drug dealer who, pursuant to a lease, occupied the streetfront store and used it illegally. They claim that numerous complaints were made to defendants of drug activities in the store in the year prior to the shooting, and that, in that same span of time, the police conducted at least five raids of the same premises. Thus, plaintiffs argue, the shooting of the infant plaintiff, as he walked on the public sidewalk in front of defendants’ premises, was foreseeable and proximately caused by the latter’s alleged failure to evict the drug-dealing tenant. Even if true, these factual allegations, which, as noted, are disputed, would not give rise to liability against defendants.
In Santiago v New York City Hous. Auth. (63 NY2d 761), the Court of Appeals affirmed the grant of summary judgment in favor of the landowner defendant where, as here, the plaintiff, who resided in a public housing project located in a neighborhood known for its criminal activity, was the victim of a shooting by a criminal assailant. The plaintiff, who alleged that the defendant was negligent in failing to repair a jammed exterior door, was shot when she was unable to open the door as she attempted to reenter the premises. The court held that "the intervening act of the unknown assailant was extraordinary and unforeseeable as a matter of law, and thus served to 'break the causal connection’ between the defendant’s negligence and the plaintiff’s injuries”. (Supra, at 763, quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315.) The court also noted, "To hold the shooting incident a foreseeable consequence of the defendant’s negligence would 'stretch the concept of foreseeability beyond acceptable limits’ ” (63 NY2d, at 763, quoting Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 952). Similarly, in Iannelli v Powers (114 AD2d 157, lv denied 68 NY2d 604), the court held that the intervening criminal acts of those responsible for a robbery and shooting severed the causal link between the conduct of the *182defendants — the owners, tenant and subtenant — who failed to take adequate security measures to prevent such incidents.
As in Santiago and Iannelli (supra), the criminal act of the unknown perpetrator in this case broke any possible causal connection between defendants’ alleged failure to take action to evict their, drug-dealing tenant and the shooting of the infant plaintiff. Moreover, even if defendants had taken some action in that regard, it cannot be held that such action would have been successful, or if successful, that it would have been timely so as to prevent the shooting. Indeed, according to plaintiffs’ own factual recitation, the police, legally charged with the responsibility of law enforcement, were apparently unable to stop the tenant’s illegal drug activity. Surely, it would be a severe and unacceptable burden to impose on a landlord the obligation, for the breach of which he could face tort liability for an unrelated third party’s criminal acts, of undertaking to prove the existence of a tenant’s illegal drug operation.
Moreover, unlike Santiago and Iannelli (supra), the infant plaintiff here was injured, not on defendants’ premises, but on the public street, over which defendants have no control. In such circumstances, plaintiffs’ injury was, as a matter of law, extraordinary and unforeseeable.
Accordingly, the order appealed from should be affirmed.
Asch and Ellerin, JJ., concur with Rosenberger, J.; Sullivan, J. P., and Carro, J., dissent in an opinion by Sullivan, J. P.
Order, Supreme Court, New York County, entered on July 11, 1988, reversed, on the law, and the complaint reinstated, without costs and without disbursements.