Stines v. Hertz Corp.
| Decision Date | 17 June 1974 |
| Citation | 45 A.D.2d 751,356 N.Y.S.2d 649 |
| Parties | Edward F. STINES, Jr. et al., Appellants, v. The HERTZ CORPORATION, etc., and Hertz System, etc., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Before HOPKINS, Acting P.J., and CHRIST, BRENNAN, BENJAMIN and MUNDER, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County, entered November 27, 1972, in favor of defendants, upon the trial court's dismissal of the complaint upon defendants' motion at the completion of plaintiffs' opening statement to the jury, which included an offer of proof.
Judgment reversed, on the law and in the interests of justice, and new trial granted, with costs to abide the event.
Plaintiffs Edward F. Stines, Jr. and Frank Fazio were allegedly injured as a result of an accident in Iowa which involved an automobile rented from an Iowa automobile lessor that had been nominated a 'licensee' of the defendant Hertz Corporation. At the commencement of the trial, the parties stipulated that the case would proceed upon the issues of (1) ownership and control of the automobile and (2) whether the driver of the automobile had permission of defendants to use the vehicle. Both sides reserved their rights on all other issues for future determination.
The rental agreement included the following restrictive provision:
'Under no circumstances shall vehicle be used, operated or driven: * * * by any person except (1) Customer; or (2) if a qualified driver, and provided Customer's permission be first obtained, (a) a member of Customer's immediate family, (b) Customer's employer, or (c) an employee of Customer in the course of such employee's regular and usual employment by Customer.'
The operator of the automobile was not a member of any class of persons to which the lessor had thus given its permission to drive. In addition to raising such restrictions and lack of permission as defenses, and that the restrictions had not been waived by persons empowered to waive them as prescribed in the agreement, defendants also denied ownership of the automobile.
Upon the trial, at the completion of plaintiffs' opening statement, which included, to an extent, an offer of proof, defendants moved to dismiss the complaint on the ground that plaintiffs had failed to state any basis for a finding that either of the defendants owned the vehicle in question or, in the...
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...not so rigidly bound by an opening that every slip or omission, however reparable or unguarded, is ipso facto fatal (Stines v. Hertz Corp., 45 A.D.2d 751, 356 N.Y.S.2d 649; Goodman v. Brooklyn Hebrew Orphan Asylum, 178 App.Div. 682, 165 N.Y.S. 949). The test for dismissing a complaint on th......
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