Fogel v. Hertz Intern., Ltd.
| Decision Date | 16 June 1988 |
| Citation | 141 A.D.2d 375,529 N.Y.S.2d 484 |
| Parties | Bruce J. FOGEL, et al., Plaintiffs-Appellants, Edward T. Karlik, et al., Plaintiffs-Appellants, v. HERTZ INTERNATIONAL, LTD., et al., Defendants-Respondents, and Edward T. Karlik, Defendant. |
| Court | New York Supreme Court — Appellate Division |
D. Jaroslawicz, M.S. Rothman, New York City, for plaintiffs-appellants.
F.M. Shulman, New York City, for defendants-respondents.
Before SANDLER, J.P., and KASSAL, ELLERIN, WALLACH and SMITH, JJ.
Order, Supreme Court, New York County (Bruce Wright, J.), entered March 9, 1987, which granted defendants-respondents' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, the motion denied, and the complaint reinstated, with costs.
These are consolidated actions brought by Bruce and Marsha Fogel and Edward and Judith Karlik against Hertz International, Ltd. and The Hertz Corporation (collectively "Hertz defendants") to recover for personal injuries and derivative claims arising from an August 2, 1983 automobile accident which occurred near Florence, Italy. The Fogels have also commenced suit against Edward Karlik, who was driving the automobile in which they were injured, and the Hertz defendants have cross-claimed against Karlik, as well.
As part of the plan for a joint vacation in Italy by the Fogels and Karliks, Edward Karlik arranged, sometime prior to departure, to rent a car from Hertz, after having seen advertisements announcing a "Hertz-affordable Europe" on television and in newspapers and magazines. The ads, which touted Hertz's low prices ["By day, Hertz is offering low rental rates (And even lower ones when you rent for twenty-two days or more)"] and offered other incentives ["[R]enting from Hertz also gets you terrific rates at 3,300 fine European hotels ...And up to 2,000 miles on your Pan Am and TWA frequent flyer programs"], provided an "800" telephone number for details and reservations. Edward Karlik called the number, which was located at a base in Oklahoma City, Oklahoma and, using a credit card, leased a car.
Upon arriving at the Rome airport on July 30, 1983, Karlik proceeded to a counter bearing the Hertz logo, which was staffed by personnel in the usual Hertz uniforms. There, his confirmed reservation was verified and he was presented with a computerized rental agreement which had the Hertz name in its upper left hand corner, printed in its familiar slanted typography. The agreement had already been partially filled out with Karlik's name and address and, pursuant thereto, Karlik took possession of the Fiat which was involved in the accident. At some unspecified point, Karlik also received an invoice with the Hertz name on its upper left hand corner and, in smaller print, the name "Hertz Italiana S.p.A." ("Hertz Italiana").
In moving for summary judgment below, the Hertz defendants argued that the vehicle was not owned by either Hertz International, Ltd. or The Hertz Corporation, but, rather, by Hertz Italiana. The court below granted the motion on the ground that Hertz Italiana has a separate corporate structure from that of the Hertz defendants. This was error, for there exist several issues of fact which preclude summary judgment.
Among the factual issues presented are whether the nature and content of the advertisements placed by the Hertz defendants to encourage Americans to rent automobiles in Europe were such as to constitute a holding out to the public which would estop them from disclaiming responsibility for Hertz Italiana's negligence. See, Ruane v. Cooper, 127 A.D.2d 524, 512 N.Y.S.2d 38. Further material issues of fact are whether the Hertz defendants acted in good faith in their advertising campaign, and whether the plaintiffs justifiably relied...
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