Kassal, J., dissents in part in a memorandum as follows: I am in agreement with the majority with respect to plaintiff’s failure to prove a prima facie case of negligence on the basis *360of the "no shoot” order. The order, issued by Police Chief Lowe in this emergency hostage situation, was a decision requiring the type of judgment for which police officers are specially trained, and its soundness in the particular circumstances presented should not have been subjected to second-guessing by the jury. (Senft v City of New York, 159 AD2d 370, lv denied 76 NY2d 704; see, Pascarella v City of New York, 146 AD2d 61, 71-72, lv denied 74 NY2d 610.)
I respectfully dissent, however, from that portion of the majority decision which reverses the judgment and dismisses the complaint with respect to plaintiff’s claim that the bulletproof vest provided to the decedent was not reasonably safe.
The record establishes that defendant conceded, by stipulation dated February 18, 1987, that it had been put on notice, prior to the incident which resulted in Joseph McCormack’s death, that the bulletproof vest used by the Emergency Services Unit (ESU) was unsuitable for its intended purposes. Known as the Davis Model 6003-3, the vest was designed to leave the body’s sides exposed in order to ensure "maneuverability”. It was uncontroverted that Officer McCormack was wearing the Davis vest that had been issued to him when he was shot by a deranged individual, and that the points of entry of the over 120 pellet wounds which resulted in his death were in the exposed areas under his left arm and his back. The shotgun wounds sustained by McCormack were to the aorta, lungs, diaphragm and spleen.
Although an employer may not be liable for an injury to an employee solely on the ground that he has not supplied the newest, safest, and best equipment (see, Cleary v Deitz Co., 222 NY 126), it is an employer’s duty to provide its employees with equipment that is safe, sound, and suitable for the intended use. (MacClave v City of New York, 24 AD2d 230, affd 19 NY2d 892.) In the case at bar, there was uncontroverted evidence that at least two other of the bulletproof vests then in existence afforded protection to the areas where Officer McCormack received his fatal wounds. Moreover, Chief Lowe conceded in his testimony that the Davis vest was unsuitable for ESU’s particular use because of the body areas left unprotected, and that he had been aware of this for at least one to two years prior to McCormack’s death. In addition, the record reveals that William Donovan, an expert in the development and manufacture of protective body gear, had offered, as early as 1975, to modify the police department’s supply of Davis vests by providing Keflar attachments *361that would cover the exposed areas without restricting arm mobility.
Thus, this claim did not involve impermissible second-guessing with respect to the professional judgment required to determine which vest was most suitable for the intended use. Rather, the issue before the jury was whether the defendant had breached its duty, as an employer, to provide equipment that would afford the protection for which it was issued and intended. (MacClave v City of New York, supra, at 232.) The jury determined that this duty had, in fact, been breached and the record does not, in my opinion, support a finding that there was "no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial”. (Cohen v Hallmark Cards, 45 NY2d 493, 499.)