Bank v. Rebold

• Decision Date: 06 August 1979
• Citation: 419 N.Y.S.2d 135,69 A.D.2d 481
• Parties: Laura BANK, Respondent, v. Vivian REBOLD et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 135

419 N.Y.S.2d 135

69 A.D.2d 481

Laura BANK, Respondent, v. Vivian REBOLD et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

Aug. 6, 1979.

Paul B. Bergins, White Plains, for appellants.

Lyon & Erlbaum, Kew Gardens (Herbert A. Lyon, Kew Gardens, of counsel; Edward H. Jurith, Kew Gardens, on the brief), for respondent.

Before HOPKINS, J. P., and DAMIANI, TITONE and SUOZZI, JJ.

SUOZZI, Justice.

In this action to recover damages for personal injuries, summary judgment should have been granted to defendant Avis Rent-A-Car Systems (Avis) dismissing plaintiff's complaint against it.

The complaint alleges that on April 23, 1971 defendant Avis, a foreign corporation doing business in this State, through its agents, rented a Volkswagen car to defendant Rebold and gave the latter permission to drive in Germany until May 13, 1971. On May 7, 1971 plaintiff, a resident of Queens County, was a passenger in the car driven by defendant Rebold in Germany when it collided with a truck driven by a German national and owned by another German national (both named defendants). Defendant Rebold is a Kings County resident.

The negligence alleged in the complaint was as follows:

"Solely by reason of the carelessness and negligence of the defendants herein, they caused and permitted their respective motor vehicles to be improperly maintained and operated same at a greater rate of speed than care and caution would permit under the circumstances, and failed and omitted to provide and/or make timely and adequate use of brakes, signaling devices, and steering mechanisms, with the result that their vehicles collided, causing injury to the plaintiff."

Both Avis and Rebold, in their answers, denied that Avis owned the car and rented it to Rebold.

After interrogatories were served and answered, plaintiff moved for partial summary judgment striking those parts of the appellants' answers wherein it was alleged that Avis did not own the car and did not rent it. In support of the motion, plaintiff's attorney described the alleged negligence solely in terms of the drivers' conduct, stating:

"The accident was caused solely by the negligence of the two drivers Rebold and Abramowski."

Plaintiff's counsel also recited the following facts in support of the motion:

(1) The record owner of the car operated by Rebold was a Belgian company, Locadif, S.A., which is not a defendant in the action. Ownership in Locadif is one-third in Avis and two-thirds in a foreign company known as Anciens Etablissements D'Ieteren Freres (hereinafter D'Ieteren), which is also not a defendant in this action.

(2) Locadif has a license from Avis to participate in a vehicle rental business and to use "Avis" in Belgium.

(3) Avis offers international reservations. Avis receives confirmation from its Belgian licensee as to whether cars are available in Belgium and this information is confirmed to the New York resident by Avis.

(4) This service is an overhead item and does not generate any independent profits.

According to plaintiff, this relationship indicates that Avis and its Belgian licensee are "actually one and the same."

Plaintiff's attorney argues in support of the motion that Avis should be estopped from denying ownership since all billing, reservations, license papers and other documents connected with the rental of the vehicle in Belgium bear the name and famous logo of the defendant corporation.

In opposition to plaintiff's motion and in support of a cross motion for summary judgment in favor of Avis, the Senior Vice President of Avis made the following factual points in his affidavit:

(1) D'Ieteren was, for a number of years prior to 1973, in the automobile rental business and was a licensee of Avis.

(2) "In or about 1970" Avis expressed interest in making an investment in this rental business and in early 1973, Avis and D'Ieteren formed Locadif. Avis invested more than $500,000 and became minority stockholder. D'Ieteren invested the assets of its car rental business, valued at at least $1,000,000, and became majority stockholder. Four of the five directors of Locadif are Belgian representatives of D'Ieteren, none of whom is employed or affiliated with Avis. Locadif's officers are Belgian (3) Locadif has been a licensee of Avis since 1973.

nationals and Ronald D'Ieteren is President and Chief Executive Officer.

The affidavit in support of the cross motion states:

"Subject to certain reporting and payment requirements in said agreement, Locadif operates its business entirely independent of Avis. A substantial company with not inconsiderable assets, it maintains its own bank accounts, employs its own staff of employees whom it pays with its own funds, and owns and rents its own property. It purchases and owns the vehicles used in its business. It determines to whom to rent its vehicles, and the charges for the rental thereof, and it maintains, services and insures those vehicles."

In view of these facts, Avis argued that it is totally independent from D'Ieteren and Locadif and cannot be liable for events arising out of Locadif's business.

THE DECISION OF SPECIAL TERM

In granting plaintiff's motion, and denying Avis' cross motion for summary judgment, Special Term stated:

"The sole issue presented on these motions is whether or not defendant Avis Rent-A-Car Systems, Inc. was the owner of the vehicle rented to this plaintiff or had such an agency relationship to the owner as to make it a proper party defendant.

"Under all of the circumstances in this case the court finds that there was such an integral and close relationship between Avis and Locadif, the actual record owner, that they may be considered together almost as one entity for jurisdictional purposes. (Gelfand v. Tanner Motors Tours, Ltd., 385 F.2d 116, 2d Cir. 1967).

"In this case, the plaintiff knew only Avis and made her reservations in New York for the rental of the vehicle in Belgium. The signed agreement is on an Avis form with words Avis in gold print with Locadif's identification in small print. Avis here made the international reservation, received confirmation of the reservation from Belgium and in turn confirmed it with the plaintiff. The Belgium licensee, Locadif has no facilities for providing international reservations which clearly suggests that the international reservation service operated by Avis is for the benefit of the licensee in Belgium. The court agrees with plaintiff's contention that this lack of independent profit making status by the international reservation service underscores the fact that Belgian licensee and Avis Rent-A-Car, Inc. are not withstanding the observance of traditional corporate amenities between them, one and the same. Frummer v. Hilton Hotels International Inc.,, 19 N.Y.2d 533, 281 N.Y.S.2d 41, 227 N.E.2d 851 (1967).

"All supporting papers show that all billing, reservations, license papers and other documents connected with this rental all bear the name and famous logo of the defendant corporation". ¹

THE APPLICABLE LAW

In this action to recover damages for personal injuries, it must be initially stressed that the only claim of negligence alleged is in connection with the operation of the two vehicles in question by Rebold and the German national. However, since the relationship of Avis to Rebold was concededly not that of a master and servant, it is clear the the doctrine of Respondeat superior, which imposes liability on a master for injuries to third persons caused by the acts or omissions of his servants (57 C.J.S. Master and Servant § 561), will not avail plaintiff in her attempt to impose liability on Avis.

The only other possible theory of liability which can be imposed on Avis is that contained in section 388 of the Vehicle and Traffic Law. That section imposes liability upon an owner of a motor vehicle for injuries caused by the negligent operator thereof, so long as the latter is driving the car with the consent or permission of the former. Specifically, subdivision 1 of section 388 of the Vehicle and Traffic Law, which covers a lessor-lessee relationship (see Cooperman v. Ferrentino, 37 A.D.2d 474, 326 N.Y.S.2d 675), provides:

"Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. Whenever any vehicles as hereinafter defined shall be used in combination with one another, by attachment or tow, the person using or operating any one vehicle shall, for the purposes of this section, be deemed to be using or operating each vehicle in the combination, and the owners thereof shall be jointly and severally liable hereunder." ²

As the court stated in Cooperman (Supra, pp. 476-477, 326 N.Y.S.2d pp. 679):

"Section 388 of the Vehicle and Traffic Law imposes liability on the owner of an automobile for injuries resulting from negligence in its use or operation by any person 'with the permission, express or implied, of such owner.' The public policy expressed by the statute frames a remedy unknown at common law for the compensation of a party injured by the negligent driver of an automobile through recourse to the owner (Continental Auto Lease Corp. v. Campbell, 19 N.Y.2d 350, 352, (280 N.Y.S.2d 123, 124, 227 N.E.2d 28, 29); Rauch v. Jones, 4 N.Y.2d 592, 596 (, 176 N.Y.S.2d 628, 630, 152 N.E.2d 63-64)); and the ownership of the automobile imports a rebuttable presumption of permission (Leotta v. Plessinger, 8 N.Y.2d 449, 461, (209 N.Y.S.2d 304, 312, 171 N.E.2d 454, 459); Brindley v. Kirzsan, 18 A.D.2d 971, 238 N.Y.S.2d 260, affd. 13 N.Y.2d 976, 244 N.Y.S.2d 779, 194 N.E.2d 688)."

Accordingly, it was incumbent on plaintiff to demonstrate initially that Avis was the owner-lessor of the Volkswagen driven by ...