Knowledge by defendant landlord of the special use of the roof of the building by the tenants and employees of tenants and acquiescence in such use is established sufficiently in the record to warrant a factual finding of permissive utilization by tenants and their employees of this portion of the premises in connection with their occupancy. It could be found that plaintiff’s employer placed signs on the roof to dry; that occasional special utilization of the roof was explained to defendant’s representative by plaintiff’s employer without objection; that employees of another tenant sat on the roof at lunch time; that the superintendent of the building was there during some of these periods.
On the question of invitation and status of plaintiff, therefore, a case has been made out prima facie. (Soto v. City of New York, 9 N Y 2d 683.) Whatever differences may exist between the degree of care defendant owed this plaintiff and the degree owed to children considered in Soto, it is clear that on the question of status, i.e., the sufficiency of the proof necessary to sustain invitation, this case and Soto are governed by the same principle. The invitation there was predicated on a mere knowledge of use which led the minority to think plaintiff had “ status as a licensee ” (p. 684). The court’s decision was that there was “ a prima facie case sufficient for submission to the jury ” and this could mean only that the court held plaintiff was an invitee — the precise point on which the complaint had been dismissed below (9 AD 2d 961, 962).
There are cases which suggest the rule to be different, e.g., Vaughan v. Transit Development Co. (222 N. Y. 79 [1917]). But the direction of decisional law seems to be to hold the questions of invitation and status in debatable circumstances such as these to be issues of fact. (Bowers v. City Bank Farmers Trust Co., 282 N. Y. 442 [1940]; Knapp v. Fulton County Nat. Bank & Trust Co., 6 A D 2d 742 [1958], motion for leave to appeal denied 5 N Y 2d 705; Davis v. Rockford Realty Management Corp., 253 App. Div. 765 [1937]).
The judgment should be affirmed.
Rabin, Várente and Eager, JJ., concur in Per Curiam opinion; Bergan, J., dissents in opinion in which Breitel, J. P., concurs.
Judgment reversed and the complaint dismissed, on the law, with costs to appellant.