Ferguson v Dollar Rent A Car, Inc.

Ferguson v Dollar Rent A Car, Inc. 2013 NY Slip Op 00435 Decided on January 29, 2013 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, 2013
Mazzarelli, J.P., Renwick, Richter, Gische, Clark, JJ.
9100 110409/08

[*1]Natasha Ferguson, Plaintiff-Appellant,

v

Dollar Rent A Car, Inc., et al., Defendants-Respondents, Ride Share Systems, LLC, Defendant.




Godosky & Gentile, P.C., New York (Emily Kern of counsel),
for appellant.
Callan Koster Brady & Brennan, LLP, New York (David A.
LoRe of counsel), for respondents.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered February 28, 2012, which granted defendants Dollar Rent A Car, Inc. and Auto Rental, LLC's motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Plaintiff alleges that she was wrongfully arrested and detained after defendants negligently rented to her acquaintance a vehicle that had been reported as stolen by another customer and negligently failed to report to the police that the vehicle had been returned. She was arrested while behind the wheel of the vehicle. On appeal, plaintiff argues that, notwithstanding the allegations of false arrest and wrongful imprisonment, the gravamen of her complaint is negligence. The theory of her claim is that, in failing to exercise reasonable care in performing their contractual duties, i.e., by renting the vehicle without notifying the police that it had been returned, defendants " launche[d] a force or instrument of harm'" (see Espinal v Melville Snow Contrs. (98 NY2d 136, 140 [2002]).

However, the damages plaintiff seeks arose from her arrest and detention, and she may not recover under general negligence principles. "[Her] recovery must be determined by established rules defining the torts of false arrest and imprisonment and malicious prosecution, rules which permit damages only under circumstances in which the law regards the imprisonment [*2]or prosecution as improper and unjustified" (Boose v City of Rochester, 71 AD2d 59, 62 [1979]).

In any event, plaintiff failed to submit evidence of any compensable injury.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 29, 2013

CLERK