Price v. Cities Service Oil Co.
| Decision Date | 05 July 1979 |
| Citation | 71 A.D.2d 700,418 N.Y.S.2d 488 |
| Parties | Francis W. PRICE et al., Appellants, v. CITIES SERVICE OIL COMPANY et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Levene, Gouldin & Thompson, Binghamton (David M. Gouldin, Binghamton, of counsel), for appellants.
Hinman, Howard & Kattell, Binghamton (James L. Chivers, Binghamton, of counsel), for respondent Cities Service Oil Co.
Smyk & Smyk, Binghamton (Stephen D. Smyk, Binghamton, of counsel), for respondent Binghamton Oil Company.
Before MAHONEY, P. J., and SWEENEY, KANE, HERLIHY and MAIN, JJ.
Appeals from (1) an order of the Supreme Court at Special Term, entered August 30, 1977 in Broome County, which granted summary judgment in favor of defendant Binghamton Oil Company, dismissing the complaint, and (2) an order of the Supreme Court at Special Term (Lee, Jr., J.), entered September 20, 1977 in Broome County, which granted summary judgment in favor of defendants Cities Service Company and Cities Service Oil Company, dismissing the complaint.
This is an action for personal injuries and loss of services arising out of an automobile accident and based on negligence, breach of warranty and products liability. Plaintiffs' son purchased the automobile in question from West Windsor Citgo, Inc. (West Windsor). The latter also performed repair work on the automobile, including the replacement of the motor, transmission and carburetor. The accident was allegedly caused by a malfunction of the carburetor. Initially, plaintiffs brought an action against West Windsor. That action and the present one have not been joined or consolidated. The causes of action against the instant defendants are based upon the alleged existence of an agency relationship between West Windsor and defendants. Special Term concluded there was no such agency relationship and granted summary judgment to all three defendants. This appeal ensued.
The critical factor is the control or the right to control by defendants of the manner in which the service station was operated. As to defendant Binghamton Oil Company, the record reveals that it subleased the premises to West Windsor. It also sold Citgo gas and oil products to West Windsor and provided West Windsor with maps bearing the Citgo Logo and promotional devices. The lease provided in clear language that Binghamton Oil Company was to have no control over the conduct or management of the business of West Windsor and further...
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