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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 153
Joseph W. Powers, &c.,
            Appellant,
        v.
31 E 31 LLC, et al.,
            Respondents.




          Alani Golanski, for appellant.
          Linda M. Brown, for respondents.
          New York State Trial Lawyers' Association; Defense
Association of New York, Inc., amici curiae.




GRAFFEO, J.:
          In this negligence case where plaintiff fell off the
setback roof of an apartment building, we conclude that
defendants failed to demonstrate their entitlement to summary
judgment on the grounds relied upon by the Appellate Division.
We therefore reverse the Appellate Division order.

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                                 - 2 -                        No. 153

                                  I.
             In the early morning hours of August 23, 2008,
plaintiff Joseph W. Powers and several others, all of whom had
been consuming alcohol, visited a friend's apartment located on
the second floor of a 13-story apartment building in Manhattan.
During the visit, the group stepped through a window in the
apartment to access the adjacent roof deck.    The window opening
was 17½ inches wide by 31 inches tall, and the flat roof area was
approximately five feet wide and extended the length of the
building above the first floor.    This setback portion of the roof
abutted the exterior wall and railing of a structure behind the
apartment building.    In one area of the roof there was a
25-foot-deep air shaft situated between the two buildings.     There
was no railing, fence or parapet wall around the perimeter of the
air shaft.    The opening of the air shaft measured approximately
six feet, four inches by eight feet, five inches.
             Plaintiff and the others walked around the setback roof
for a few minutes and then re-entered the apartment through the
window they had used earlier.    After a time, the group realized
that plaintiff was no longer with them.    They undertook a search
and discovered that plaintiff was lying unresponsive at the
bottom of the air shaft.    Apparently, plaintiff had re-exited the
apartment through the window and fallen off the unguarded edge of
the setback roof into the air shaft.     As a result of this tragic
accident, plaintiff sustained debilitating injuries.


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                                 - 3 -                       No. 153

           In 2010, plaintiff, through his guardian ad litem
William T. Powers, commenced this personal injury action against
the owners and managers of the apartment building, defendants 31
E 31 LLC and B & L Management Co., Inc.   Plaintiff alleged that
defendants had created and maintained a dangerous condition and
negligently caused his injuries by failing to install a railing,
parapet wall or fence around the perimeter of the air shaft.     In
support of his negligence claim, plaintiff further asserted that
the absence of a guardrail violated the Multiple Dwelling Law and
New York City Building Code.
           Defendants answered and, after discovery, moved for
summary judgment dismissing the complaint, arguing primarily that
plaintiff's accident was unforeseeable and that the 1968 and 2008
New York City Building Codes did not govern the condition of this
particular roof because the construction of the apartment
building predated those codes.    Supreme Court denied defendants'
motion, finding their proof insufficient to demonstrate that the
building codes did not require a protective guard on the setback
roof and holding that there were questions of fact concerning
foreseeability (38 Misc 3d 1211[A], 3-5 [Sup Ct, NY County
2012]).   The court also rejected defendants' additional arguments
that they could not be held liable on the basis that plaintiff
had no memory of the accident and the air shaft was an open and
obvious condition (see id. at 6-7).
           The Appellate Division reversed and dismissed the


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                                 - 4 -                       No. 153
complaint (105 AD3d 657 [1st Dept 2013]).    The court found that
the 1979 certificate of occupancy submitted by defendants
demonstrated that the building was grandfathered out of the 1968
and 2008 Building Codes and complied with the earlier regulations
(see id. at 657-658).    The court further concluded that
defendants had no duty to mitigate the risk of an accident such
as plaintiff's fall because, "given the nature and location of
the setback, it was unforeseeable that individuals would choose
to access it" (id. at 657).     Because it disposed of the case on
those grounds, the court did not reach defendants' alternative
arguments.
             We granted plaintiff leave to appeal (21 NY3d 863
[2013]) and now reverse.
             The central issue before us is whether defendants'
summary judgment proof was sufficient to refute plaintiff's
allegations of negligence -- more particularly, plaintiff's
assertion that the building codes required the erection of a
railing or parapet on the setback roof.    Defendants argue that
the building was exempted from the 1968 and 2008 Building Codes,
relying on an exception contained in the code in effect when the
building was constructed in 1909.    According to defendants, their
summary judgment proffers, which consisted primarily of an expert
affidavit and a certificate of occupancy issued by the City,
established that the 1909 exception applied and that subsequent
alterations to the building did not require updated compliance.


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                                 - 5 -                       No. 153
Alternatively, defendants claim that, even if the 1968 Building
Code governs, it does not mandate that the setback roof have a
protective guard.
             Plaintiff counters that defendants failed to eliminate
questions of fact concerning the applicability of the 1909
exception or whether the later conversion of the building to
multiple dwelling use obligated defendants to bring the entire
building into compliance with the 1968 Building Code.    Plaintiff
contends that, by granting defendants summary judgment, the
Appellate Division assigned too much weight to the certificate of
occupancy.    We agree.
             Under the Multiple Dwelling Law, every open roof area
of a multiple dwelling erected or converted to residential use
after April 18, 1929 must be protected by a parapet wall or guard
railing unless the department charged with code enforcement deems
such protection unnecessary (see Multiple Dwelling Law §§ 9 [2];
62 [1]).   The parties agree that under the building code in
effect in 1909, all exterior walls over 15 feet high -- except
where finished with gutters -- were required to have two-foot
parapet walls extending above the roof (see L 1982, ch 275, §
479; 1906 Building Code of the City of New York § 43; 1899
Building Code of the City of New York § 43).    This exclusion for
walls finished with gutters was carried into subsequent building
codes, which applied to new construction (see 1938 Building Code
of the City of New York §§ C26-5.0, C26-444.0; 1916 Building Code


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                                - 6 -                        No. 153
of the City of New York §§ 4, 259).     Thus, if the setback roof in
this case had gutters in 1909, the lack of a railing would not
necessarily indicate a violation of the early codes.
          By 1968, however, instead of excepting walls finished
with gutters, the building code mandated that buildings which
were "more than [22] feet in height and have roofs that are
flatter than [20] degrees to the horizontal shall be provided
with a parapet . . . railing[,] or fence" of a specific height
(1968 Building Code of the City of New York [Administrative Code
of City of NY] § 27-334).   The 2008 Building Code contains a
similar requirement (see NY City Building Code [Administrative
Code of the City of NY tit 28, ch 7] § 1509.8).
          In light of these code provisions, we reject
defendants' claim that the 1968 and 2008 Building Codes require
the installation of railings or parapets only on the highest roof
of a building.   Although the 1968 Building Code refers to a
"parapet . . . railing[,] or fence" in the singular, it
specifically provides that "words used in the singular include
the plural, and the plural the singular" (1968 Building Code of
the City of New York [Administrative Code of City of NY] §§ 27-
231, 27-334).    The definition of "roof" in the 1968 Building Code
refers to "[t]he topmost slab or deck of a building," but the
term "building" must be construed as if followed by the phrase
"or part thereof" (id. § 27-232).     As the setback roof is the
topmost slab of "part of the building," it falls within the


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                                - 7 -                        No. 153
purview of section 27-334 (id.).    Furthermore, although section
27-334 provides that protective guards may be located six feet
inward from the face of the exterior wall, this is not a
mandatory condition (see id. § 27-334).    Contrary to defendants'
contention, a setback roof that is less than six feet wide
requires a protective guard and, consequently, if the 1968
Building Code applies, the absence of a parapet or railing on the
edge of the setback roof may run counter to the requirements of
the code.
            Like its predecessors, the 1968 Building Code required
existing buildings to conform to the new standards under certain
circumstances (see generally id. subchapter 1, art 4).     Here, the
parties agree that the updated code governs the entire apartment
building if post-1968 alterations were made to the structure
that, within a 12-month period, cost more than 60% of the
building's value (see id. § 27-115).    The 1968 Building Code also
provides that alterations resulting in changes to the occupancy
or use classification, or the conversion to multiple dwelling
use, may require that the entire building comply with the updated
code requirements, depending on whether public safety and welfare
are endangered (see id. §§ 27-118, 27-120).
            As the proponent of summary judgment, defendants bore
the burden of "tendering sufficient evidence to demonstrate the
absence of any material issues of fact" (Alvarez v Prospect
Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ.


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                              - 8 -                           No. 153
Med. Ctr., 64 NY2d 851, 853 [1985]).    Specifically, defendants
needed to eliminate any doubt as to whether, under the foregoing
regulatory scheme, the absence of a protective guard on the
setback roof conformed to code.   To that end, defendants should
have established that the roof was finished with gutters in 1909
and that the 1979 conversion did not trigger an obligation to
bring the entire building, including the unaltered setback roof,
into compliance with the 1968 Building Code.   In our view,
defendants' proof fell short in both respects.
          In support of their motion, defendants submitted the
affidavit of engineer Cornelius F. Dennis and a certificate of
occupancy issued by the City in 1979.   In the absence of the 1909
building plans, however, the engineer's assertion that the
building was finished with gutters in 1909 was speculative (cf.
Ramos v Howard Indus., Inc., 10 NY3d 218, 224 [2008]; Diaz v New
York Downtown Hosp., 99 NY2d 542, 544 [2002]).    Although he
opined that the 1979 conversion did not implicate section 27-115
or require that the building be brought into compliance with the
1968 Building Code, the engineer based his conclusion solely upon
the estimated cost of the alterations cited in the permit
application, without including the value of the building in 1979.1


     1
        Under section 27-119 of the 1968 Building Code, the cost
of making alterations for purposes of applying section 27-115
must be determined by adding the estimated cost of the proposed
alterations to the actual cost of any and all alterations made in
the past twelve months (see 1968 Building Code of the City of New
York [Administrative Code of City of NY] § 27-119). The value of

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Dennis averred only that there was "no doubt in [his] mind" that
the building was worth "some multiple of $2,300,000."    These
conclusory assertions are insufficient to demonstrate the absence
of any material issue of fact (see Vega v Restani Constr. Corp.,
18 NY3d 499, 503 [2012]).
             Nor does the 1979 certificate of occupancy satisfy
defendants' burden to present a prima facie showing of
entitlement to judgment as a matter of law, and our decision in
Hyman v Queens County Bancorp, Inc. (3 NY3d 743 [2004]) does not
hold otherwise.    In Hyman, the plaintiff bore the burden of
establishing that the proffered building code provision was in
effect at the relevant time and that updated compliance was
required because the plaintiff had raised the building code in
opposition to the defendant's summary judgment proof, which had
shown there was no defective or dangerous condition on the
premises (see id. at 744-745).     In light of the certificate of
occupancy presented by the defendant, paired with the absence of
any indication that the stairway was defective, or any evidence
that the proffered codes applied, the plaintiff in Hyman failed
to raise a legitimate issue of fact to defeat summary judgment
(see id.).
             In this case, it was defendants' burden to prove at the


the building must be calculated, at the applicant's option "on
the basis of one and one-quarter times the current assessed
valuation of the building, as adjusted by the current state
equalization rate, or on the basis of the current replacement
cost of the building" (id.).

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outset that the absence of a railing did not violate the building
regulations (see Lesocovich v 180 Madison Ave. Corp., 81 NY2d
982, 985 [1993] [holding that the defendant failed to establish
that the updated building code did not apply]).   On this record,
defendants have not adequately demonstrated that the roof was
finished with gutters in 1909, and the certificate of occupancy
is inadequate to establish that the setback roof fully complied
with all code mandates on the date of its issuance or 29 years
later on the day of plaintiff's accident (see Solomons v Douglas
Elliman LLC, 94 AD3d 468, 470 [1st Dept 2012]; see generally
Garrett v Holiday Inns, 58 NY2d 253, 262-263 [1983]; see also NY
City Construction Codes [Administrative Code of the City of NY
tit 28, ch 1] § 28-118.1).    Hence, under the circumstances of
this case, issues of fact concerning the roof's compliance with
the building codes remain.2
          Plaintiff also argues that, under our holding in
Lesocovich v 180 Madison Ave. Corp. (81 NY2d 982 [1993], supra),
the Appellate Division erred in concluding that there are no
triable questions of fact as to whether his accident was
foreseeable.   Defendants posit that holding them liable for



     2
        The record contains some indication that, in 1979,
defendants elected to convert the building to multiple dwelling
use under the 1968 Building Code. Plaintiff, however, makes no
argument that this election necessarily required that unaltered
parts of the building be brought into updated compliance pursuant
to section 27-120 of the 1968 Code. Thus, we have no occasion to
pass on that question.

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                              - 11 -                         No. 153
plaintiff's injuries would require the imposition of a new duty
of care, and they claim that Lesocovich is factually
distinguishable.   Defendants' arguments are unpersuasive.
           It is well settled that, as landowners, defendants have
"a duty to exercise reasonable care in maintaining [their] . . .
property in a reasonably safe condition under the circumstances"
(Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]; see Basso
v Miller, 40 NY2d 233, 241 [1976]).    The existence and scope of
this duty is, in the first instance, a legal question for the
courts to determine by analyzing the relationship of the parties,
whether the plaintiff was within the zone of foreseeable harm,
and whether the accident was within the reasonably foreseeable
risks (see Sanchez v State of New York, 99 NY2d 247, 252 [2002];
Di Ponzio v Riordan, 89 NY2d 578, 583 [1997]; Palsgraf v Long Is.
R.R. Co., 248 NY 339, 344 [1928] ["[t]he risk reasonably to be
perceived defines the duty to be obeyed], rearg denied 249 NY 511
[1928]).
           The focus of our inquiry, therefore, is whether it was
foreseeable that defendants' tenants and their guests would
access the setback roof and be exposed to a dangerous condition
from the absence of a railing or guard around the air shaft.    In
Lesocovich, the plaintiff fell off a setback roof while visiting
a friend's apartment and alleged that the fall was due to the
absence of a railing or parapet (see 81 NY2d at 983).    As here,
the setback roof was not an area included in the tenant's lease,


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                              - 12 -                        No. 153
no permission had been obtained for her to use it and the
landlord denied prior knowledge of its use.   Also, the roof in
Lesocovich was similarly accessible only through a window (see
id. at 983-984).   In that case, we denied the defendant's summary
judgment motion, holding that reasonable minds could disagree as
to whether the plaintiff's use of the roof was foreseeable (see
id. at 985).
           Although the roof in Lesocovich may have been more
suitable to recreational use, here, the setback roof was flat and
of sufficient size and length to comfortably permit several
individuals to stand or walk on it.    Access to the roof was
easily obtained through the hallway window, and neither plaintiff
nor his friends had any difficulty exiting.   In Lesocovich, the
plaintiff had to climb on furniture to reach the small window
leading to the roof; yet we still held that a jury could find the
tenant's use of the window to access the roof foreseeable (see
id.).   Here, the tenant of the apartment that plaintiff was
visiting testified that he had stepped onto the roof through the
window approximately 15 times in the two months preceding the
accident to smoke cigarettes and that the previous tenant had
often done the same.   According to the resident, evidence of this
use was visible because cigarette butts and garbage littered the
roof.   On this record, as in Lesocovich, reasonable minds could
differ as to whether plaintiff's use of the roof and his
resulting fall were foreseeable, thereby precluding the grant of


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summary judgment to defendants on that ground.
            Because we conclude that defendants failed to make a
prima facie showing of entitlement to judgment as a matter of law
with respect to whether the absence of a protective guard on the
setback roof violated the building codes and whether the accident
was foreseeable, we need not consider the sufficiency of
plaintiff's opposing papers (see Alvarez, 68 NY2d at 324).
            Accordingly, the order of the Appellate Division should
be reversed, with costs, and the case remitted to the Appellate
Division for consideration of issues raised but not reached on
the appeal to that court.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *    *   *
Order reversed, with costs, and case remitted to the Appellate
Division, First Department, for consideration of issues raised
but not determined on the appeal to that court. Opinion by Judge
Graffeo. Chief Judge Lippman and Judges Smith, Pigott, Rivera
and Abdus-Salaam concur. Judge Read dissents and votes to affirm
for the reasons stated in the memorandum of the Appellate
Division (105 AD3d 657 [2013]).

Decided October 21, 2014




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