concurring-in-part-and-dissenting-in-part">Fein, J. (concurring in part; dissenting in part).

I concur with Justice Sandler that the evidence was sufficient to support a jury verdict that the landlord breached its duty of reasonable care toward the plaintiff and that such breach was a proximate cause of plaintiff’s injuries. I see no need to expand on his thoughtful opinion demonstrating that liability was established.

However, I disagree with his conclusion that it was proper to submit sections 389-m and 389-o of the General Business Law for the jury’s consideration. The ostensible reason for receiving the statute in evidence was to show custom and usage. However, the legislation was applicable only to installations subsequent to its effective date, July 1, 1973. It is undisputed that the glass shower door here involved was installed long prior to that date. The statute did not require removal of existing untempered glass installations and replacement with “safety glazing material”. The statute only applied to future installations. Thus it was error to consider the statute as applicable in any way. The error was not cured by the Trial Judge’s instruction to the jury that the statute was to be considered only for purposes of establishing custom and usage and not as a statement of the applicable law. This could only be misleading. Moreover, the error was compounded by the fact that the plaintiff’s attorney repeatedly referred to the statute as making the use of the nonshatterproof glass “unlawful”. It was not.

When the Legislature made it “unlawful” to “install * * * glazing materials other than safety glazing materials in *31or for use in, any ‘hazardous locations’ ” (General Business Law, § 389-o) after the effective date of July 1, 1973 (L 1972, ch 609, § 2), it made clear that the existence of preinstalled nonshatterproof sliding glass doors was not to be considered a violation of law. Thus the statute could not establish a standard of care or custom and usage with respect to pre-existing installations.

Justice Sandler has cited a “trend” in other jurisdictions toward the admission in evidence of statutes and regulations not precisely in point as evidence of a standard of care. I am not persuaded by the rationale of such cases, nor do I believe they reflect the applicable New York law.

In Jokelson v Allied Stores Corp. (31 AD2d 200, mot for resettlement den 31 AD2d 806) the infant plaintiff suffered injury in December, 1961 when his fingers became wedged between the treads and the combing of defendants’ escalator. The tread separations on this escalator, installed in May, 1937, measured one-half inch. In December, 1951, former section C26-1161.0 of the New York City Administrative Code was enacted requiring tread separation slots on escalators to be no wider than one-quarter inch. However, the statute specifically exempted escalators installed prior to January 1, 1938. This court held that it was prejudicial error to rely upon the statute at trial for the purpose of establishing failure to maintain and operate the escalator pursuant to a standard of care, measured by custom and usage, stating (31 AD2d, at p 203): “Plaintiffs’ proof of custom and usage relating to numerous installations subsequent to December, 1951 is irrelevant on the custom and usage as to installations before the enactment of section C26-1161.0, such as appellant’s, since the more recent installations were mandated by the Administrative Code and the alleged custom and usage could play no part therein.”

Receipt in evidence of such legislation to establish custom and usage as the applicable standard of care may well mislead the jury however careful the court’s instructions. It was prejudicial error to receive the statute and charge the jury with respect thereto (Carhart v Relmar Operating Corp., 66 AD2d 680, 681). Such error requires that the judgment appealed from be reversed and a new trial directed.

*32There is no basis for dismissing the complaint. There was ample expert testimony as to the custom and practice preceding the enactment of the statute to replace regular glass for bathtub enclosures with safety glazing. It was supported by the reports of the Consumer Safety Commission, the American National Standards Institute and the National Safety Council. The evidence plainly was sufficient to create a jury issue as to whether a standard of care had developed and whether it was violated.

Although the statute was not admissible to prove a standard of care based on custom and usage, its adoption in response to felt needs plainly demonstrated that the use of nonshatterproof glass in shower doors was deemed a dangerous condition. The statute describes a shower door as a “hazardous location” and imposes sanctions for installing non-“safety glazing materials” in such locations after its effective date. It would be anomalous to hold that as a matter of law, the glass door here involved was not a dangerous condition. Judicial notice of the statute precludes a finding that there was no negligence as a matter of law. Accordingly, I must respectfully disagree with the majority’s ruling that as a matter of law there was no dangerous or defective condition, as well as its conclusion that as a matter of law the landlord breached no duty by the maintenance of such a glass shower enclosure.

I find no basis for the majority’s conclusion that the duty to replace the glass was not that of the landlord. It is undisputed on this record that the glass was installed by the landlord. The landlord’s own manager, albeit he became manager after the accident, testified that landlords in the community involved generally knew of the hazard and that long before the statute was enacted it was the custom to replace such glass with safety glazing materials when requested by the tenant or when the glass in place broke. This plainly was a recognition of a dangerous condition. Such evidence of the existence of the custom and practice of landlords in the community to replace such glass was sufficient to establish the notice which the majority finds to be lacking. At least a jury could so find.

This is not a case in which a defect in a multiple dwelling developed without the landlord’s knowledge, so that notice *33was required. This is rather a case where a jury could properly find that landlord knew that the glass in place was not shatterproof and was dangerous. Why else would replacements be made with safety glazing and not with the same glass? Thus the landlord is not being required to use the best or the safest or a better or safer way, as the majority suggests. It is sufficient for liability to establish that the glass in use was not safe and that this was generally known to landlords in the community. Of this there was ample evidence. Thus we are not concerned with the rule that the existence of a better or safer practice does not establish a standard, but rather with whether there was compliance with a standard of reasonable care established by custom and usage. This was for the jury (see Bennett v Long Is. R. R. Co., 163 NY 1). A landlord must meet “a ‘standard of reasonable care under the circumstances whereby foreseeability shall be a measure of liability.’ ” (Loeser v Nathan Hale Gardens, 73 AD2d 187, 190.) The practice of replacing ordinary glass with safety glass, upon request or when the ordinary glass breaks, imports a recognition that ordinary glass bathtub enclosures may constitute a dangerous condition. At least a jury could so find.

That a glass shower door is a portion of the multiple dwelling, which it is the responsibility of the landlord to maintain, is plain (Multiple Dwelling Law, § 78; see Weiss v Wallach, 256 App Div 354, 357).

The evidence was sufficient for a jury to find that there was a dangerous condition known to the landlord which the landlord had the duty to remedy and which was a proximate cause of the accident and plaintiff’s injuries.

The judgment appealed from should be reversed and a new trial directed with costs to abide the event.

Birns, J. P., Sullivan and Lynch, JJ., concur; Fein, J., concurs in part and dissents in part in an opinion and Sandler, J., dissents in a separate opinion.

Judgment, Supreme Court, Bronx County, entered on May 5, 1980, reversed, on the law, and the complaint dismissed, without costs and without disbursements.

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