¶1(dissenting). As of January 1997, defendants owned a vacant city lot which was accessed via an abandoned concrete driveway. All former structures on the property had long since been demolished and it had no indicia of being a parking lot for public or private use. It was, simply stated, a vacant lot. Late one night, a vehicle in which plaintiff was a passenger parked on the property. Plaintiff, having injured himself when he slipped and fell on broken concrete, seeks to recover against defendants. We respectfully disagree with the majority’s conclusion that defendants, under the facts of this case, had a legal duty to maintain the abandoned driveway which led to the vacant lot.
¶2In our view, to recognize a duty of insuring a safe passage for plaintiff, who was indeed a trespasser on the property, extends the law well beyond Basso v Miller (40 NY2d 233 [1976] ) which, not insignificantly, involved a premises “open to the public” (id. at 235). Notably, on the same day that the Court of Appeals decided Basso v Miller (supra),it emphasized that in eliminating the rule that status determines duty, it did not mean “that every case involving injury on private property raises a factual question for the jury’s consideration” (Scurti v City of New York, 40 NY2d 433, 442 [1976]). “The traditional role of the court in setting the perimeters of negligence did not disappear with the abolition of the uncompromising common-law classifications” (Quinlan v Cecchini, 41 NY2d 686, 689 [1977] ).
¶3Thus, it cannot be gainsaid that “the existence and scope of an alleged tortfeasor’s duty is usually a legal, policy-laden declaration reserved for Judges to make prior to submitting anything to fact-finding or jury consideration” (Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]). This well-established principle, that it is for the courts to “fix[ ] the duty point,” has recently been reaffirmed by the Court of Appeals (Peralta v Henriquez, 100 NY2d 139, 144 [2003]). Here, it is not sufficient to begin and end with the general rule that property owners have a duty to maintain their premises in a reasonably safe condition. Rather, the court must first define the nature and scope of the duty and determine to whom the duty is owed, if anyone, a process which requires consideration of a number of factors, including the burden on the landowner to avoid the risk (see Kush v City of Buffalo, 59 NY2d 26, 29-30 [1983]).
¶4Indeed, the Court of Appeals in Peralta v Henriquez (supra)specifically eschewed a duty requiring all landowners to light their property by noting that the burden of such a finding *662would clearly outweigh the societal benefits and inappropriately sweep an unexpected guest “into the duty’s reach” (id. at 145). By finding a jury question in this case, the majority imposes a duty on every owner of vacant property to either light the property or eliminate every potential defect which might cause a trespasser to trip, thereby imposing an “unreasonable burden on the owners of vacant land” (Palmer v Prescott, 208 AD2d 1065, 1067 [1994], lv denied 85 NY2d 804 [1995]). Moreover, we do not read Palmer v Prescott (supra)as narrowly as the majority, i.e., limited to snow and ice. The logic of this Court’s holding in Palmer, that an owner of vacant property has no duty to maintain the premises for the benefit of unauthorized trespassers, applies without distinction to broken concrete just as well as it does to snow and ice. Holding otherwise creates dangerous precedent and is an unwarranted expansion of the law of premises liability.
¶5Lastly, the majority’s observation that this argument is unpreserved for our review is directly controverted by an acknowledgment in the supplemental affirmation of plaintiffs counsel submitted to Supreme Court. In this affirmation, counsel recites that the defense specifically relied on Palmeron the summary judgment motion by “arguing that the defendants owed no duty of reasonable care to the plaintiff, in the first place.” Finding the issue preserved and Palmerdeterminative, we would affirm Supreme Court’s order.
¶6Peters, J., concurs. Ordered that the order is reversed, on the law, with costs, and motion denied.