| Repeti v McDonald's Corp. |
| 2008 NY Slip Op 02702 [49 AD3d 1089] |
| March 27, 2008 |
| Appellate Division, Third Department |
| Nancy G. Repeti, as Executor of Lily Ajemian, Deceased,Respondent, v McDonald's Corporation, Appellant, et al., Defendant. |
—[*1] Rusk, Waldin, Heppner & Martuscello, L.L.P., Kingston (Dana D. Blackmon of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Kavanagh, J.), entered February 27,2006 in Ulster County, which, among other things, denied a motion by defendant McDonald'sCorporation for summary judgment dismissing the complaint against it.
In May 2003, Lily Ajemian was injured when a pair of handicap-accessible, electricallyoperated doors at the entrance of the Malden rest area in Ulster County allegedly closed suddenlyand struck her from behind. The Malden facility is owned by nonparty State Thruway Authority,which leases the property to defendant McDonald's Corporation (hereinafter defendant).Magliocca Stores, Inc.—also a nonparty—is a franchisee of defendant and operatesthe McDonald's food service restaurant at the Malden rest area. Ajemian commenced thispersonal injury action against defendant and defendant Stanley Access Technologies, thepurported [*2]manufacturer and installer of the doors.[FN*]Defendant and Stanley each moved for summary judgment dismissing the complaint. SupremeCourt denied both motions. Defendant appeals, claiming that, as a matter of law, it owed no dutyto Ajemian.
We affirm. "[T]o prevail on its motion, defendant 'must make a prima facie showing ofentitlement to judgment as a matter of law, tendering sufficient evidence to eliminate anymaterial issues of fact from the case' " (Webster v Town of Saugerties, 25 AD3d 861, 862 [2006], quotingWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Zuckerman vCity of New York, 49 NY2d 557, 562 [1980]; Manculich v Dependable Auto Sales & Serv., Inc., 39 AD3d 1070,1071 [2007]). "Failure to make such showing requires denial of the motion, regardless of thesufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d at853 [citations omitted]). We hold that defendant has failed to make a prima facie case whichwould entitle it to judgment as a matter of law.
First, defendant claims that it owes no duty to Ajemian, a public user of the facility, as lesseeof the premises, by virtue of its franchise agreement with Magliocca. "In determining whetherdefendant, as franchisor, may be held vicariously liable for the acts of . . . itsfranchisee, the most significant factor . . . is the degree of control that the franchisormaintains over the daily operations of the franchisee or, more specifically, the 'manner ofperforming the very work in the course of which the accident occurred' " (Hart v MarriottIntl., 304 AD2d 1057, 1058 [2003], quoting Andreula v Steinway Baraqafood Corp.,243 AD2d 596, 596 [1997]; see Henness v Lusins, 229 AD2d 873, 873-874 [1996] ["Anout-of-possession landlord is generally not responsible for the maintenance or repair of leasedpremises; however, one who retains control of the premises or contracts to repair or maintain theproperty may be liable for defects"]).
Here, defendant has tendered insufficient evidence to establish, as a matter of law, that itlacked control over the doors which allegedly caused Ajemian's injuries. Notably, defendantfailed to include the franchise agreement in its papers (cf. Hart v Marriott Intl., 304 AD2dat 1058-1059). Although evidence exists that Magliocca's employees maintain the cleanliness ofthe doors and report operational defects directly to the Authority, deposition testimony alsoestablishes that routine daily inspections by Magliocca managers addressing "issues of sanitation. . . maintenance, [and] safety" are done pursuant to protocols established byboth Magliocca and defendant. Thus, we cannot say, as a matter of law on this record,that defendant lacked the requisite control over the facility to form the basis of a duty to thepublic users of the rest area (see Mountain Candy & Cigar Co. v Dairy Mart ConvenienceStores, 267 AD2d 570, 570-571 [1999]).
Next, defendant asserts that its lease agreement with the Authority conclusively establishesthat neither it nor its franchisee, Magliocca, had any duty or authority to maintain the doors. Thelease contract between defendant and the Authority states that, "the AUTHORITY shall maintain,repair and replace . . . the building structural shell, including . . .exterior doors and frames," and "[defendant] shall maintain and repair . . . allfixtures and improvements, [*3]including . . .interior doors." The contract further provides that the "lobby" includes the "vestibule," which isapparently the area that divides the two sets of entrance doors. It is at least arguable that the innerset of doors, which define the inner boundary of the vestibule, are part of the "interior" of thebuilding. Although substantial evidence exists that the Authority in fact maintained the doors inquestion and that only the Authority and Stanley were qualified or authorized to perform suchmaintenance, on this record we cannot determine, as a matter of law, whether the inner set ofdoors are "interior" or "exterior" doors and, thus, which entity had responsibility pursuant to thelease contract for their maintenance and repair (see Vander Veer v Henderson, 267 AD2d584, 585 [1999]; Downey v R.W. Garraghan, Inc., 198 AD2d 570, 571 [1993]; seealso Santiago v Pyramid Crossgates Co., 294 AD2d 789, 790 [2002]; cf. Zadarosni v F.& W. Restauranteurs of Southeast, 192 AD2d 1051, 1052 [1993]).
Mercure, J.P., Peters, Lahtinen and Malone Jr., JJ., concur. Ordered that the order isaffirmed, with costs.
Footnote *: Upon Ajemian's death, whichoccurred subsequent to the order appealed from, Supreme Court ordered the substitution of theexecutor of her estate as plaintiff.