Blake v City of New York

Blake v City of New York 2013 NY Slip Op 05608 Decided on August 14, 2013 Appellate Division, Second 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 August 14, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
PLUMMER E. LOTT
LEONARD B. AUSTIN, JJ.
2011-11246
(Index No. 26176/10)

[*1]Brenderline Blake, respondent,

v

City of New York, appellant.




Michael A. Cardozo, Corporation Counsel, New York, N.Y.
(Pamela Seider Dolgow and Michael Shender of counsel), for appellant.
Decolator, Cohen & DiPrisco, LLP, Garden City, N.Y. (Joseph
L. Decolator of counsel), for
respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Velasquez, J.), dated October 26, 2011, as denied that branch of its motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the cause of action pursuant to General Municipal Law § 205-e as was predicated upon a violation of Labor Law § 27-a(3)(a)(1).

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss so much of the cause of action pursuant to General Municipal Law § 205-e as was predicated upon a violation of Labor Law § 27-a(3)(a)(1) is granted.

This action arises out of an incident which occurred on June 26, 2010, on the southbound platform of the Marcy Avenue subway station in Brooklyn. At that time, the plaintiff, a police officer employed by the New York City Police Department (hereinafter the NYPD), was injured in an altercation with a female suspect. The plaintiff attempted to subdue the suspect by spraying her with Mace, but the cannister failed to work, thereby allowing the suspect to attack and injure the plaintiff. The cannister of Mace had been issued to the plaintiff by the NYPD. The plaintiff commenced the instant action against the City, asserting, in her second cause of action, a claim pursuant to General Municipal Law § 205-e predicated upon, inter alia, a violation of Labor Law § 27-a(3)(a)(1).

The Supreme Court erred in denying that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action pursuant to General Municipal Law § 205-e insofar as it was predicated upon a violation of Labor Law § 27-a(3)(a)(1),which requires every employer to furnish its employees with a type of employment and a place of employment that are "free from recognized hazards" that cause or are likely to cause death or serious physical harm to those employees. Although Labor Law § 27-a(3) may serve as a proper predicate for a cause of action alleging a violation of General Municipal Law § 205-e (see Gammons v City of New York,AD3d, 2013 NY Slip Op 05298 [2d Dept 2013]; Campbell v City of New York, 31 AD3d 594; Balsamo v City of New York, 287 AD2d 22), the plaintiff failed to allege that her injuries resulted from a "recognized hazard[ ]" within the meaning of the Labor Law (Labor Law § 27-a[3][a][1]; see Link v City of New York, 34 AD3d 757; see also Carro v City of New York, 89 AD3d 1049; Alexander v City of New York, 82 AD3d 1022, 1024; Norman v City of New York, 60 AD3d 830; cf.Gammons v City of New York,AD3d , 2013 NY Slip Op 05298).
MASTRO, J.P., DICKERSON, LOTT and AUSTIN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court