dissents in a memorandum as follows: In the absence of clear legislative intent regarding the meaning and breadth of the exemption from apportionment of liability found in CPLR 1602 (5), I would adhere to our prior determinations in (Brewster v Prince Apts., 264 AD2d 611, 616, lv denied 94 NY2d 762, lv dismissed 94 NY2d 875; Pantages v L.G. Airport Hotel Assocs., 187 AD2d 273) and apply the rule requiring strict construction of statutes which are in derogation of common law (McKinney’s Cons Laws of NY, Book 1, Statutes § 301 [a], at 460). Accordingly, I would affirm the trial court’s pre-trial ruling that defendant not be afforded a CPLR article 16 apportionment charge and, contrary to the majority’s view, hold that plaintiff preserved her right to exemption from the application of article 16 from the very inception of this lawsuit.
On the morning of October 13, 1991, plaintiff’s husband, Leandrow Roseboro, arrived at the platform of defendant’s train station at 116th Street and 8th Avenue to await the A train which would take him to work. At the time in question, defendant Transit Authority was aware that this train station was infested with crack addicts, and defendant’s token booth clerk, Joseph Hutchinson, remembered seeing Mr. Roseboro, whom he recognized as a “regular,” enter the station that morning.
Shortly thereafter, Mr. Roseboro was approached by two of the addict habitues, who then attempted to rob him, during the course of which he was beaten. While this assault was taking place, Hutchinson saw, on the three television monitors located in the front of his token booth, a disturbance but took no affirmative action. Hutchinson admitted at trial that he was dozing on and off at the time.
Another resident drug user, Rochelle White, testified that the assault of Mr. Roseboro lasted more than five minutes, during which time the victim was brutally beaten, and that he eventually fell to the tracks while attempting to get away. However, the assailants pursued Mr. Roseboro onto the tracks, continuing to beat him by slamming his head against a beam which separated the local and express tracks, while rifling his pockets. At this time, a train entered the station. The assailants jumped up on the platform; Mr. Roseboro, however, bloodied and staggering, could not avoid the oncoming train and died shortly after impact.
*226The assailants were eventually captured and convicted of murder in the second degree.
The jury returned a verdict finding that defendant Transit Authority breached a duty of reasonable care owed to Mr. Roseboro based on Hutchinson’s conduct and awarded damages totaling some $800,000, including $500,000 for non-economic loss. The majority would now affirm the liability portion of the judgment but would remand for a new trial on apportionment fault between the Transit Authority and the assailants because the plaintiff failed to preserve her claim to exemption from the application of CPLR article 16 and because, in any event, no exemption to defendant’s right to apportionment exists under the facts herein. For the following reasons, I respectfully disagree and would affirm the judgment in toto.
Plaintiff’s complaint specifically pleads, as required by CPLR 1603, that the action is exempt from CPLR article 16 application. The sole purpose of the requirement to plead exemption is to place the defendant on notice that it is “potentially subject to the weight of a full judgment” (Cole v Mandell Food Stores, 93 NY2d 34, 40). Contrary to the majority, there is no requirement in the statute or case law mandating the plaintiff to plead the precise exemption relied upon in her complaint. If the defendant is unsure, it may always seek amplification by serving a bill of particulars requesting the particular exemption relied upon. This defendant did not do.
Additionally, the issue of defendant’s right to apportionment was addressed via a motion in limine and denied, prior to trial based on the exemption found in CPLR 1602 (5), and this Court’s prior decisions (Brewster, supra; Pantages, supra). Defendant Transit Authority is thus hardly in a position to claim surprise or prejudice.
The majority would ignore or overrule our prior holdings in light of Morales v County of Nassau (94 NY2d 218) and Rangolan v County of Nassau (96 NY2d 42). But neither Morales nor Rangolan considered the exemption found in CPLR 1602 (5)— “actions requiring proof of intent.” In Morales, the plaintiff utterly failed to plead exemption from article 16 application and only raised a general public policy argument against such application on appeal. The Court of Appeals held that only those exemptions specifically set forth in CPLR 1602 may be considered in determining article 16’s application and public policy was not a listed exemption. Notably, however, the Court did recognize that the trial court and Appellate Division could consider even unpled exemptions in the exercise of discretion and in the absence of prejudice (94 NY2d at 223). Contrary to *227the majority’s intimation, plaintiff does not rely here on public policy, but, rather, on the exemption set forth in CPLR 1602 (5).
I agree with the analysis set forth by my colleague,. Justice Saxe, in his opinion in Chianese v Meier (285 AD2d 315 [decided herewith]). Rangolan did not consider the exemption relied upon herein — CPLR 1602 (5) “actions requiring proof of intent.” Rangolan merely held that CPLR 1602 (2) (iv) does not preclude apportionment where a defendant’s liability arises from breach of a non-delegable duty, specifically finding this subdivision to be a savings clause intended to preserve principles of vicarious liability. Significantly, the plaintiff in Rangolan did not assert CPLR 1602 (5) as a bar to apportionment. The plaintiff here does.
In addition to the cogent reasoning of Justice Saxe set forth in Chianese, allowing for the application of the exemption at issue here to cases where a negligent tortfeasor seeks apportionment from an intentional wrongdoer, I would add the following. A primary purpose underlying the imposition of liability against premises owners who fail to take reasonable precaution to protect those lawfully on their property is to ensure full and just recompense for the injured party as well as compel premises owners to provide proper security. This Court’s previous decisions serve to deter the negligent tortfeasor from failing to act where such inaction creates the risk of a foreseeable intentional tort by preserving traditional joint and several liability (see, Kreindler, Rodriguez, Beekman & Cook, New York Law of Torts § 10.11, 2001 Supp, at 77-78). To allow negligent premises owners to transfer some of their responsibility to the very persons they are legally required to protect a plaintiff from would in effect undermine the rationale for the duty owed by a landowner to provide reasonable security (see, Burgos v Aqueduct Realty, 92 NY2d 544).
There is, of course, great societal concern that those who commit criminal acts be apprehended and prosecuted. Yet, if such persons are not apprehended, a negligent premises owner will not be afforded CPLR article 16 consideration since a nonparty’s liability may not be considered if the plaintiff proves that with due diligence jurisdiction over such nonparty could not be obtained (CPLR 1601). Ironically, under the majority’s interpretation, a blameless victim, who cooperates in the vigorous prosecution of a criminal action where the perpetrator is apprehended, would be penalized by reduction of just compensation for the injuries suffered. This anomaly does not arise, however, if the exemption in CPLR 1602 (5) is given its intended effect.
*228I am not unmindful that the general purpose of article 16’s enactment was “to remedy the inequities created by joint and several liability on low-fault, ‘deep pocket’ defendants” (Rangolan, supra at 46). However, the Legislature also sought an equitable balance by enacting specific exemptions to its application, including CPLR 1602 (5).
The Legislature’s use of different terms in its delineation of the various exemptions makes clear that the Legislature did not intend that an assault victim whose injuries were foreseeable and proximately caused by the actions or inaction of a premises owner should be deprived of her common-law right to joint and several liability based solely on the fortuitous and capricious circumstance of her assailant’s capture. Subdivision (11) of CPLR 1602 specifically provides that article 16 shall “not apply to any parties found to have acted knowingly or intentionally, and in concert.” (Emphasis added.) Subdivision (5), relied upon by plaintiff here, provides that article 16 shall “not apply to actions requiring proof of intent.” (Emphasis added.) Had the Legislature intended subdivision (5) to apply only to a party whose liability is based on intentional actions, it would have employed the same or similar language as that found in subdivision (11) to express that intent. “[WJhere, as here, the Legislature uses different terms in various parts of a statute, courts may reasonably infer that different concepts are intended” (Rangolan, supra at 47).
Accordingly, in the absence of clear legislative intent regarding the right to article 16 apportionment between a negligent and intentional tortfeasor, and consistent with the rule of statutory construction requiring strict interpretation of statutes which are in derogation of the common law, I would hold that the exemption found in CPLR 1602 (5) precludes apportionment between a negligent and intentional tortfeasor and would not allow the general purpose of CPLR article 16 to override the exemption or ignore all other considerations. Concur — Sullivan, P. J., Tom and Rubin, JJ.