
    [20 NE3d 990, 996 NYS2d 210]
    Joseph W. Powers, by His Guardian ad Litem, William T. Powers, Appellant, v 31 E 31 LLC et al., Respondents.
    Argued September 10, 2014;
    decided October 21, 2014
    
      POINTS OF COUNSEL
    
      Weitz & Luxenberg, EC., New York City (Alani Golanski, Lawrence Goldhirsch and Jonathan Sedgh of counsel), for appellant.
    I. The Appellate Division erred in holding that plaintiffs tragic fall was unforeseeable “as a matter of law” and that defendants had no common-law duty to remedy the extreme hazard created by their oft-used roof surface. (Gordon v American Museum of Natural History, 67 NY2d 836; Espinal v New York City Hous. Auth., 215 AD2d 281; Lal v Ching Po Ng, 33 AD3d 668; Rhabb v New York City Hous. Auth., 41 NY2d 200; Rosine v Richmond County Fed. Sav. & Loan Assn., 294 NY 682; Martinez v White Cottage Enters., 2 AD3d 506; Di Ponzio v Riordan, 89 NY2d 578; Larchmont Professional Fire Fighters Assn. v Larchmont/Mamaroneck Volunteer Ambulance Corps, 206 AD2d 507.) II. The Appellate Division erred in holding that, as a matter of law, the 1979 certificate of occupancy both established the building’s characteristics in 1909, and excused dangerous statutory and regulatory height-related violations existing in 2008. (Kellman v 45 Tiemann Assoc., 87 NY2d 871; Slomin v Skaarland Constr. Corp., 207 AD2d 639; Hayes v Texas Roadhouse Holdings, LLC, 100 AD3d 1532; Garrett v Holiday Inns, 58 NY2d 253; Cirino v Greek Orthodox Community of Yonkers, 193 AD2d 576; Clinton v McKeon, 174 AD2d 153; Matter of Schultz Mgt. v Board of Stds. & Appeals of City of N.Y., 64 NY2d 1057; Pavon v 19th St. Assoc. LLC, 17 Misc 3d 1125[A], 2007 NY Slip Op 52144[U]; Pappalardo v New York Health & Racquet Club, 279 AD2d 134.)
    
      Herzfeld & Rubin, PC., New York City {Linda M. Brown and David B. Hamm of counsel), for respondents.
    I. The statutory claim must be dismissed because there was no requirement that the setback ledge have a parapet, railing or fence. (Moynahan v City of New York, 205 NY 181; People ex rel. New York Cent. & Hudson Riv. R.R. Co. v Woodbury, 208 NY 421; People v Wright, 86 NY2d 591; People v Gruden, 42 NY2d 214; Ramos v Howard Indus., Inc., 10 NY3d 218; Diaz v New York Downtown Hosp., 99 NY2d 542; Wasson v Bond, 80 AD3d 1114; Feliz v Beth Israel Med. Ctr., 38 AD3d 396; Hyman v Queens County Bancorp, Inc., 3 NY3d 743; Matter of DeNicola v Scarpelli, 154 AD2d 462.) II. In the absence of a statutory violation, the complaint must be dismissed. Defendants violated no common-law duty. In any event, the accident was not foreseeable, and plaintiffs conduct was the superseding or sole proximate cause of his injuries. (Matter of New York City Asbestos Litig., 5 NY3d 486; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Purdy v Public Adm’r of County of Westchester, 72 NY2d 1; D’Amico v Christie, 71 NY2d 76; Pulka v Edelman, 40 NY2d 781; Di Ponzio v Riordan, 89 NY2d 578; Maria T. v New York Holding Co. Assoc., 52 AD3d 356, 11 NY3d 708; Williams v Citibank, 247 AD2d 49; Gray v Forest City Enters., 244 AD2d 974; Gross v Empire State Bldg. 
      
      Assoc., 4 AD3d 45.) III. The complaint was properly dismissed as there is no proof of proximate causation. (Morris v Solow Mgt. Corp. Townhouse Co., L.L.C., 46 AD3d 330; McNally v Sabban, 32 AD3d 340; Jennings v 1704 Realty, L.L.C., 39 AD3d 392; Witt v Hill St. Commercial, LLC, 59 AD3d 217; Lynn v Lynn, 216 AD2d 194; Noseworthy v City of New York, 298 NY 76; Kane v Estia Greek Rest., 4 AD3d 189; Castore v Tutto Bene Rest. Inc., 77 AD3d 599; Raghu v New York City Hous. Auth., 72 AD3d 480; Reed v Piran Realty Corp., 30 AD3d 319.) IV The alleged hazardous condition was open and obvious. (Tagle v Jakob, 97 NY2d 165; Koval v Markley, 93 AD3d 1171; Peralta v Henriquez, 100 NY2d 139; Rivas-Chirino v Wildlife Conservation Socy., 64 AD3d 556; Toes v National Amusements, Inc., 94 AD3d 742; Rachlin v 34th St. Partnership, Inc., 96 AD3d 690; Galindo v Town of Clarkstown, 2 NY3d 633; Mizell v Bright Servs., Inc., 38 AD3d 267.) V Plaintiff does not fall within the classes provided special protection from height-related hazards.
    
      Robert F. Danzi, New York City, for New York State Trial Lawyers Association, amicus curiae.
    I. Certificates of occupancy should not be deemed to immunize defendants from liability for harms caused by building hazards existing decades later. (Garrett v Holiday Inns, 58 NY2d 253; Board of Mgrs., Fairview at Artist Lake, Condominium I v Fairview at Artist Lake, 81 AD3d 768; Cardiff v Carrier, 79 AD3d 1626; Cirino v Greek Orthodox Community of Yonkers, 193 AD2d 576; Santiago v United Artists Communications, 263 AD2d 407; Solomons v Douglas Elliman LLC, 94 AD3d 468; Hayes v Texas Roadhouse Holdings, LLC, 100 AD3d 1532.) II. The constructive notice doctrine remains viable in New York and applies in this case. (Gordon v American Museum of Natural History, 67 NY2d 836; Stewart v Sherwil Holding Corp., 94 AD3d 977; Cusack v Peter Luger, Inc., 77 AD3d 785; Hammond-Warner v United States, 797 F Supp 207; Negri v Stop & Shop, 65 NY2d 625; Haseley v Abels, 84 AD3d 480; Kelsey v Port Auth. of N.Y. & N.J., 52 AD2d 801; LaPadula v J.A.A. Grocery Corp., 37 AD3d 237.) III. New York’s solicitude for the welfare of citizens endangered by preventable height-related hazards also warrants reinstatement of plaintiffs complaint. (Quigley v Thatcher, 207 NY 66; Koenig v Patrick Constr. Corp., 298 NY 313; Rocovich v Consolidated Edison Co., 78 NY2d 509; Adekanbi v Purdue Leasing Ltd. Liab. Co., 12 Misc 3d 1096; Sizse v Wegmann, 169 App Div 112.)
    
      McGaw, Alventosa & Zajac, Jericho {Dawn C. DeSimone and Andrew Zajac of counsel), Brian Rayhill, Elmsford, Roña L. 
      
      Platt, Uniondale, Brendan T Fitzpatrick, Garden City, and Jonathan T. Uejio, New York City, for Defense Association of New York, Inc., amicus curiae.
    I. The Appellate Division correctly ruled that this incident was unforeseeable as a matter of law, and this Court should affirm. (Palsgraf v Long Is. R.R. Co., 248 NY 339; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 64 NY2d 670; Basso v Miller, 40 NY2d 233; Nallan v Helmsley-Spear, Inc., 50 NY2d 507; Hubbell v City of Yonkers, 104 NY 434; Hamilton v Beretta U.S.A. Corp., 96 NY2d 222; Blye v Manhattan & Bronx Surface Tr. Operating Auth., 124 AD2d 106, 72 NY2d 888; Danielenko v Kinney Rent A Car, 57 NY2d 198; Greene v Sibley, Lindsay & Curr Co., 257 NY 190; Derdiarian v Felix Contr. Corp., 51 NY2d 308.) II. The Appellate Division correctly held that plaintiff failed to raise an issue of fact on his claim of statutory violations. (Hyman v Queens County Bancorp, Inc., 3 NY3d 743; Matter of DeNicola v Scarpelli, 154 AD2d 462; Matter of Di Pasquale v Haskins, 25 AD2d 490; Matter of Edwards v Murdock, 283 NY 529; Town of Union v Pallet Co., 50 AD2d 628; Matter of Kayfield Constr. Corp. v Morris, 15 AD2d 373; Matter of Baumann & Sons Buses v Patchogue-Medford Union Free School Dist., 231 AD2d 566; De Lancey v Piepgras, 138 NY 26.) III. The arguments advanced by plaintiff and the New York State Trial Lawyers’ Association based on Labor Law § 240 and window guard regulations are completely misplaced. (Whelen v Warwick Val. Civic & Social Club, 47 NY2d 970; Stringer v Musacchia, 11 NY3d 212.)
   OPINION OP THE COURT

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.

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 17x/2 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 reentered 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.

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], 2012 NY Slip Op 52429[U], *3-7 [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 2012 NY Slip Op 52429[U], *6-7).

The Appellate Division reversed and dismissed the 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 plaintiffs 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 plaintiffs 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. 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 1892, ch 275, § 15; 1906 Building Code of City of NY § 43; 1899 Building Code of City of NY § 43). This exclusion for walls finished with gutters was carried into subsequent building codes, which applied to new construction (see 1938 Building Code of City of NY [Administrative Code of City of NY] §§ C26-5.0, C26-444.0; 1916 Building Code of City of NY §§ 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 . . . railingt,] or fence” of a specific height (1968 Building Code of City of NY [Administrative Code of City of NY] § 27-334). The 2008 Building Code contains a similar requirement (see NY City Building Code [Administrative Code of City of NY, tit 28, ch 7] § BC 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 City of NY [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 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. subch 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. 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 P. 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. 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 plaintiffs bore the burden of establishing that the proffered building code provisions were in effect at the relevant time and that updated compliance was required because the plaintiffs had raised the building codes 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 plaintiffs 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 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 plaintiffs 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 City of NY, tit 28, ch 1] § 28-118.1). Hence, under the circumstances of this case, issues of fact concerning the roofs compliance with the building codes remain.

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 plaintiffs 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, 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 plaintiffs 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 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 plaintiffs 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.

Chief Judge Lippman and Judges Smith, Pigott, Rivera and Abdus-Salaam concur with Judge Graffeo; Judge Read dissents and votes to affirm for the reasons stated in the memorandum of the Appellate Division (105 AD3d 657 [2013]).

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. 
      
      . 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 12 months (see 1968 Building Code of City of NY [Administrative Code of City of NY] § 27-119). The value of 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.).
      
     
      
      . 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.
     