| Akkaya v Prime Time Transp., Inc. |
| 2007 NY Slip Op 08979 [45 AD3d 616] |
| November 13, 2007 |
| Appellate Division, Second Department |
| Alaaddin Akkaya et al., Appellants, v Prime TimeTransportation, Inc., Respondent. |
—[*1] Pike & Pike, P.C., Bellmore, N.Y. (Roberta C. Pike of counsel), for respondent.
In an action for an accounting, the plaintiffs appeal from an order of the Supreme Court,Queens County (Price, J.), dated May 8, 2006, which denied their motion for summary judgmenton the complaint and granted that branch of the defendant's cross motion which was for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
"The right to an accounting rests on the existence of a trust or fiduciary relationshipregarding the subject matter of the controversy at issue" (Town of New Windsor v New Windsor Volunteer Ambulance Corps,Inc., 16 AD3d 403, 404 [2005]; see El-Khoury v Karasik, 265 AD2d 372,373-374 [1999]; Wesselmann v International Images, 259 AD2d 448 [1999];Chalasani v State Bank of India, N.Y. Branch, 235 AD2d 449, 450 [1997]). "[T]here isno fiduciary relationship between a franchisee and a franchisor" (Marcella & Co. v AvonProds., 282 AD2d 718, 719 [2001]; see Wilmington Trust Co. v Burger King Corp., 34 AD3d 401[2006]; Bevilacque v Ford Motor Co., 125 AD2d 516, 519 [1986]; Mobil Oil Corp. vRubenfeld, 48 AD2d 428, 432 [1975], affd 40 NY2d 936 [1976]). Here, thedefendant established, and the plaintiffs conceded, that the relationship between the parties is oneof franchisor and franchisees. Therefore, the defendant established its prima facie entitlement tosummary judgment dismissing the complaint. In response, the plaintiffs failed to raise a triableissue of fact regarding whether a fiduciary relationship existed. Therefore, the Supreme Courtproperly granted that branch of the defendant's cross motion which was for summary judgmentdismissing the complaint. Miller, J.P., Lifson, Angiolillo and McCarthy, JJ., concur.