| Martinez v Higher Powered Pizza, Inc. |
| 2007 NY Slip Op 06730 [43 AD3d 670] |
| September 13, 2007 |
| Appellate Division, First Department |
| Rafael Martinez, Respondent, v Higher Powered Pizza,Inc., Doing Business as Papa John's Pizza, et al., Defendants, and Papa John's International, Inc.,et al., Appellants. |
—[*1] Law Office of Eric M. Baum, New York (Carol L. Abrams of counsel), forrespondent.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered October 16, 2006,which denied the motion of defendants Papa John's International, Inc. and Papa John's USA, Inc.(collectively, Papa John's) for summary judgment without prejudice to renewal after furtherdiscovery, unanimously reversed, on the law, without costs, the motion granted and thecomplaint dismissed as to those defendants. The Clerk is directed to enter judgment accordingly.
Plaintiff was injured when defendant Pardo struck him with a bicycle while makingdeliveries for defendant Higher Powered Pizza, a franchisee of Papa John's. Shortly after theaction was commenced, Papa John's moved for summary judgment on the grounds that under thefranchise agreement, Papa John's was not vicariously liable for the acts of its franchisee, since ithad no control over the franchisee's day-to-day operations. The agreement and the sworn affidavitof Papa John's general counsel were submitted in support of dismissal. Plaintiff contends that theprediscovery motion is premature, but fails to explain how discovery will lend merit to his case.
The motion court erred in denying summary judgment. The mere existence of a franchiseagreement is insufficient to impose vicarious liability on the franchisor for the acts of itsfranchisee; there must be a showing that the franchisor exercised control over the day-to-dayoperations of its franchisee (Schoenwandt v Jamfro Corp., 261 AD2d 117 [1999];Hong Wu v Dunkin' Donuts, Inc., 105 F Supp 2d 83 [ED NY 2000], affd 4 Fed Appx82 [2d Cir 2001]). Here, the franchise agreement expressly states that the franchisee "shall havefull responsibility for the conduct and terms of employment for [its] employees and theday-to-day operation of [its] business." As in the typical franchise agreement, the only control theagreement reserves to Papa John's involves enforcement of standards in areas such as foodquality and preparation, hours of operation, menu items, employee uniform guidelines, andpackaging requirements. This includes the right to perform inspections, limited to review of salesand order forms, audits to ensure compliance with company standards, and observation ofinteraction with customers. Retention [*2]of such rights does notgenerally give rise to a legal obligation (105 F Supp 2d at 87). In any event, there was noreservation of control over the delivery process or delivery personnel, Pardo was not an employeeof Papa John's, and Papa John's general counsel avers that it does not own or operate a restaurantin New York County. Inasmuch as plaintiff offers only surmise and conjecture in opposingsummary judgment, Papa John's was entitled to dismissal of the complaint as against them(Shapiro v Health Ins. Plan of Greater N.Y., 7 NY2d 56, 63 [1959]; Moore v True N. Communications, 1AD3d 175 [2003]). Concur—Sullivan, J.P., Nardelli, Williams, Gonzalez andCatterson, JJ.