Hamilton v. Hertz Corp.

• Decision Date: 24 January 1986
• Citation: 498 N.Y.S.2d 706,130 Misc.2d 1034
• Parties: Charlene M. HAMILTON, Plaintiff, v. The HERTZ CORPORATION, Hertz International, Ltd. (a Wholly-owned subsidiary of The Hertz Corporation) and Randolph Evans, Defendants.
• Court: New York Supreme Court

Page 706

498 N.Y.S.2d 706

130 Misc.2d 1034

Charlene M. HAMILTON, Plaintiff, v. The HERTZ CORPORATION, Hertz International, Ltd. (a

Wholly-owned subsidiary of The Hertz Corporation)

and Randolph Evans, Defendants.

Supreme Court, Special Term,

New York County, Part I.

Jan. 24, 1986.

Williams & Geiger, Brooklyn (Mark E. Feinberg, of counsel), for plaintiff.

Moore, Berson, Lifflander & Mewhinney, New York City (Daniel J. Dillon, of counsel), for defendants Hertz Corp. and Hertz Intern., Ltd.

ISRAEL RUBIN, Justice:

Defendants The Hertz Corporation and Hertz International, Ltd. ("Hertz") move for summary judgment dismissing the complaint pursuant to CPLR 3212.

"You don't just rent a car. You rent a company" the ad copy reads. And that, plaintiff contends, is precisely what she did.

This action arises out of a single-vehicle automobile accident which occurred on a public highway "in the vicinity of the Puente Gambote Bridge, at or near Cartagena, Columbia, South America," according to the amended verified complaint. The vehicle in question was rented from Superent de La Costa, sublicensee of Superent, Ltda. Superent Ltda was granted the right to operate an automobile rental business under the name "Hertz" (and to sublicense others to use the name "Hertz") by virtue of an assignment of the license granted by Hertz International, Ltd. to one Carlos F. Gonzalez of Bogota, Columbia.

On the night of October 27, 1982, plaintiff was a passenger in a Chevrolet Champ pickup truck driven by defendant Randolph Evans. The vehicle was rented by plaintiff and defendant Evans from Superent de La Costa in Cartagena. Travelling along an unlit road, the driver encountered a pile of sand in the roadway. He successfully swerved to avoid the sand, but crashed instead into a pile of gravel some six to eight feet high. Plaintiff was thrown into contact with the shattered windshield, sustaining injury to her head and face.

The amended complaint enumerates three causes of action based, respectively, on the legal theories of negligence, fraud and breach of contract. The first cause of action alleges that Hertz maintains a place of business in Cartagena, Columbia for the renting of motor vehicles and that the vehicle in question was owned by Hertz. Liability is predicated on the alleged failure "to maintain proper brakes and steering mechanisms" (complaint, paragraph eighteenth).

The allegation in the complaint, however, is unsupported by an affidavit indicating that the vehicle was in any way defective. Neither plaintiff in her affidavit nor the individual defendant in the excerpt of his deposition attached to defendants' motion papers state that there was any defect in the vehicle which contributed to the accident. It is well settled that, to defeat a motion for summary judgment, a party must lay bare his facts and present sufficient evidentiary proof to establish a genuine triable issue of fact (Smith v. Johnson Products Co., 95 A.D.2d 675, 463 N.Y.S.2d 464 ). A motion for summary judgment may not be defeated by surmise, conjecture and suspicion (Gray Mfg. Co. v. Pathe Industries, Inc., 33 A.D.2d 739, 305 N.Y.S.2d 794 Affirmed 26 N.Y.2d 1045, 312 N.Y.S.2d 200, 260 N.E.2d 821). Nor are bald conclusory assertions, even if entirely plausible, sufficient to defeat the motion (Mayer v. McBrunigan Const. Corp., 105 A.D.2d 774, 481 N.Y.S.2d 719 Plaintiff has therefore failed to establish facts sufficient to raise the issue of negligence in the maintenance of the vehicle.

The second cause of action, sounding in fraud, suffers from a similar shortcoming. Plaintiff alleges that because Superent de La Costa prominently displayed "Hertz" signs and literature, honored her Hertz discount card and generally held itself out to be part of the business enterprise of Hertz, she was fraudulently induced into renting a vehicle from that corporation. In the affirmation in opposition to the motion, it is asserted that the elements of fraud are present. These are stated to be "Material misrepresentations; Falsity of the representations; Defendant's knowledge of the falsity; Intent to deceive; Ignorance of the plaintiff: reliance by the plaintiff; and Injury." However, this statement is not entirely accurate. Fraud is a material misrepresentation, known by the maker to be false, made with the intent to deceive, upon which plaintiff innocently relies and as a result of which plaintiff sustains injury. Conspicuously absent from the pleadings is a showing of the requisite nexus between the alleged misrepresentation and the injury sustained by plaintiff. Even construing the facts in a light most favorable to plaintiff (Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 ) and assuming that she was duped into renting a vehicle from Superent de La Costa by fraud, the asserted misrepresentation cannot be said to have caused her injury which, as noted above, is not claimed to have been caused by any defect in the vehicle's condition.

The parties devote a great deal of attention to the question of whether Superent de La Costa is (1) the alter ego or (2) the apparent agent (agency by estoppel) of Hertz. In support of their motion, defendants rely on the case of Bank v. Rebold, 69 A.D.2d 481 419 N.Y.S.2d 135 As the court in Bank pointed out, liability cannot be supported on the alter ego theory because each of the corporations involved has its own separate assets, employees and business (Berkey v. Third Ave. Ry. Co., 244...