(dissenting). We respectfully dissent. Despite the “functional equivalent” of two separate and independent residences within these premises and the undisputed private agreement between defendant Maureen Rafferty (hereinafter Rafferty) and defendant Brian P. Rafferty (hereinafter defendant) that each would have exclusive possession and control over their own unit, we cannot agree that defendant has presented sufficient facts to establish his status as an out-of-possession landowner, as a matter of law, such that a finding of liability would be precluded due to his lack of occupation and control over Rafferty’s unit (compare, Hinds v Consolidated Rail Corp., 263 AD2d 590, 591).
The law is settled “ ‘that liability for a dangerous condition on property is predicated upon ownership, occupancy, control or special use of the property5 ” (O’Brien v Trustees of Troy Annual Conference of United Methodist Church, 257 AD2d 954, 955, quoting Palmer v Prescott, 208 AD2d 1065, 1066, lv denied 85 NY2d 804; see, Foley v Golub Corp., 252 AD2d 905, 906-907) such that “ ‘[t]he existence of one or more of these elements * * * [may] give rise to a duty to exercise reasonable care’ ” (Foley v Golub Corp., supra at 907, quoting Turrisi v Ponderosa, Inc., 179 AD2d 956, 957). With evidence establishing that the certificate of occupancy for the premises identified it as a single-family residence and that defendant alone maintained liability insurance on the entire structure as a single-family residence, we cannot conclude that the parties’ independent agreement can be deemed sufficient to undermine the genuine issue of fact raised by plaintiff (see, Zuckerman v City of New York, 49 NY2d 557) as to whether defendant had sufficient possession and control over the entire premises to give rise to a duty to have kept this home in a reasonably safe condition (see, Basso v Miller, 40 NY2d 233, 241; Foley v Golub Corp., supra at 908).
Accordingly, we would reverse that portion of the order entered August 22, 2000 which granted defendant’s motion for summary judgment.
Lahtinen, J., concurs. Ordered that the orders are affirmed, without costs.