Poveromo v. Avis Rent-A-Car System, Inc.

• Decision Date: 18 September 1997
• Docket Number: RENT-A-CAR
• Citation: 242 A.D.2d 467,662 N.Y.S.2d 52
• Parties: , 1997 N.Y. Slip Op. 7520 Rocco POVEROMO, et al., Plaintiffs-Appellants, v. AVISSYSTEM, INC., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 52

662 N.Y.S.2d 52

242 A.D.2d 467, 1997 N.Y. Slip Op. 7520

Rocco POVEROMO, et al., Plaintiffs-Appellants, v. AVIS RENT-A-CAR SYSTEM, INC., et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Sept. 18, 1997.

Steven P. Forbes, for plaintiffs-appellants.

Barry P. Schwartz, for defendants-respondents.

Before ROSENBERGER, J.P., and WALLACH, RUBIN, TOM and COLABELLA, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about June 12, 1996, which, inter alia, granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff police officer alleges that the negligence of a fellow officer who was driving a leased police vehicle in which plaintiff was a passenger caused the vehicle to go over a metal bumper and become airborne, resulting in injury to plaintiff upon impact with the ground. At the time of the accident plaintiff was en route to inspect a building, performing his duty as a member of the Mayor's Social Clubs Tasks Force. For purposes of the appeal, we deem the complaint to allege causes of action for common-law negligence and under General Municipal Law § 205-e for violation of Vehicle and Traffic Law §§ 1124, 1125, 1128(a), 1146, 1163 and 1190 (see, Pensee Assocs. v. Quon Shih-Shong, 199 A.D.2d 73, 605 N.Y.S.2d 35). The common-law negligence cause of action was properly dismissed because plaintiff's performance of his duty to promptly inspect nonresidential buildings and immediately seal those found perilous increased the risk of his sustaining an injury in a car accident en route to a site, and did not merely "furnish the occasion" for the injury (see, Zanghi v. Niagara Frontier Transp. Commn., 85 N.Y.2d 423, 439, 626 N.Y.S.2d 23, 649 N.E.2d 1167; cf., Sheehan v. City of New York, 40 N.Y.2d 496, 503, 387 N.Y.S.2d 92, 354 N.E.2d 832). Concerning the General Municipal Law § 205-e claim, dismissal is warranted because former Vehicle and Traffic Law § 1190, now covered by § 1212, prohibits reckless driving in very general terms that do not "mandate the performance or nonperformance of specific acts" (Desmond v. City of New York, 88 N.Y.2d 455, 464, 646 N.Y.S.2d 492, 669 N.E.2d 472), a requirement left unchanged by the subsequent broadening of liability in subdivision 3 of General Municipal Law § 205-e, and the other alleged Vehicle and Traffic Law sections do not have any practical or reasonable connection to the manner in...