(dissenting and voting to reverse the order appealed from and to grant the separate motions of the defendants New York City Transit Authority, City of New York, Schiavone Construction Co., Inc., Judlau Contracting, Inc., and CAB Associates for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, with the following memorandum): I would grant the separate motions of the appellants for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The plaintiffs theory of the case against the appellants, all of whom were allegedly involved in performing renovation work on the Franklin Avenue Shuttle line at the time of the accident, is that the fence on the Lincoln Place overpass (hereinafter the Lincoln Place fence) was negligently maintained so as to permit the *979plaintiff to access the construction area, and that the fence on the Eastern Parkway overpass (hereinafter the Eastern Parkway fence) was negligently maintained in an unsafe condition, such that it shifted when the plaintiff attempted to climb over it.
In my view, no liability can be premised upon the theory that the Lincoln Place fence was negligently maintained allowing the infant plaintiff to access the construction area. To be actionable, “the negligence complained of must have caused the occurrence of the accident from which the injuries flow” (Rivera v City of New York, 11 NY2d 856, 857 [1962]). Here, the alleged failure to repair the Lincoln Place fence, as a matter of law, was not a proximate cause of the infant plaintiffs injuries (see Rizzi v Scarsdale Leasing Corp., 223 AD2d 696 [1996]). At best, the gap in the fence on the Lincoln Place overpass “merely contributed to the setting for the accident—a condition for the occurrence, rather than one of its causes” (Hoenig v Park Royal Owners, 249 AD2d 57, 59 [1998]; see also Lee v New York City Hous. Auth., 25 AD3d 214 [2005]).
Moreover, I would conclude that the appellants cannot be held liable for any failure to properly maintain the Eastern Parkway fence, which is alleged to have shifted while the infant plaintiff attempted to climb over it, causing him to fall off the fence. A landowner has a duty to act reasonably and to maintain its property in a reasonably safe condition (see Basso v Miller, 40 NY2d 233 [1976]). This Court has previously recognized, however, that a landowner does not have a duty to maintain a fence, the purpose of which is to keep people out, in such condition that it can be safely climbed over (see Koppel v Hebrew Academy of Five Towns, 191 AD2d 415 [1993]). Thus, the appellants breached no duty with respect to the Eastern Parkway fence.