Levine v. Chemical Bank

—Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about August 10, 1994, which granted defendant bank’s motion to dismiss the complaint against it for failure to state a cause of action, unanimously affirmed, without costs.

In an action for wrongful death and pain and suffering, the decedent, an off-duty police officer, was shot and killed when he tried to apprehend one of the perpetrators of an assault on a customer at an ATM machine. Insofar as the action against defendant bank is based on common-law negligence for failure to provide adequate security, it was properly dismissed on the ground that recovery is precluded by the so-called "fireman’s rule” as applied to police officers (Santangelo v City of New York, 71 NY2d 393 ; Cooper v City of New York, 81 NY2d 584 ), and more specifically to off-duty police officers attempting to apprehend a suspect (Campbell v Lorenzo’s Pizza Parlor, 172 AD2d 478 , lv denied 78 NY2d 863 ). Nor can there be recovery under General Municipal Law § 205-e because any violation by the bank of the statutes relied upon would not have increased the risk faced by the decedent in his pursuit of the perpetrators (St. Jacques v City of New York, 215 AD2d 75 ). Further, any such violation could not have been the proximate cause of the decedent’s death (Dyer v Norstar Bank, 186 AD2d 1083 , lv denied 81 NY2d 703 ). Concur—Rosenberger, J. P., Wallach, Rubin and Williams, JJ.