Jollon v. City of New York City , 998 N.Y.S.2d 637 ( 2015 )

Jollon v City of New York City (2015 NY Slip Op 00700)

Jollon v City of New York City

2015 NY Slip Op 00700

Decided on January 29, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 29, 2015
Gonzalez, P.J., Friedman, Andrias, Gische, Kapnick, JJ.

106692/09 14081 14080

[*1] Daniel Jollon, Plaintiff-Appellant,

v

The City of New York City, Defendant-Respondent.

Sullivan Papain Block McGrath & Cannavo P.C., New York (Stephen C. Glasser of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Susan P. Greenberg of counsel), for respondent.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 19, 2013, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the cause of action under General Municipal Law § 205-a, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered April 16, 2014, which, upon reargument, adhered to the original determination, unanimously dismissed, without costs, as academic.

There is no evidence in the record that plaintiff's injury was directly or indirectly caused by a violation of either the statute or the regulation upon which his Municipal Law § 205-a claim is predicated (see generally Williams v City of New York, 2 NY3d 352, 363 [2004]). Pursuant to Labor Law § 27-a(3)(a)(1), defendant was required to furnish to plaintiff "employment and a place of employment ... free from recognized hazards ... and reasonable and adequate protection to [his] li[fe], safety or health." Plaintiff was injured not because of a defect in the facility or his equipment but because of a training instructor's failure to ensure that his personal protection system was properly attached to his bunker gear before he self-repelled from a training building (see Williams, 2 NY3d at 367-368; cf. Gammons v City of New York, ___ NY3d ___, 2014 NY Slip Op 08869 [2014]).

As the record shows that plaintiff's equipment was functional and in good order, there is [*2]no evidence that his injury was caused by any violation of 29 CFR 1910.156(d), which requires the employers of fire brigades to inspect firefighting equipment at least annually, "to assure the safe operational condition of the equipment."

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2015

CLERK