Skolnik v. Utica Shell Service Center, Ltd.
| Decision Date | 18 March 1975 |
| Parties | Joseph SKOLNIK (Capitol Utica, Inc.), Petitioner, v. UTICA SHELL SERVICE CENTER, LTD., Respondent. |
| Court | New York City Court |
Kornblum & Shlefstein Brooklyn, for petitioner.
Arnold P. Azarow, New York City, of counsel to V. Roy Cacciatore and Alan J. Berman, Freeport, for respondent. IRVING S. ARONIN, Justice.
Respondent in this non-housing holdover proceeding instituted for an alleged breach of lease, seeks in this preliminary motion to dismiss the petition on the ground that this Court lacks jurisdiction over the subject matter.
In urging dismissal on jurisdictional grounds respondent propounds two arguments, the first being that the relationship between the parties herein transcends that of lessor-lessee and is one of franchisor-franchisee, and therefore not the subject for summary proceedings and, the second being that the Federal Energy Administration Regulations promulgated in light of the gasoline energy crises divests this Court of jurisdiction over the subject matter.
The issues to be determined, therefore, are whether the relationship between the parties herein is that of lessor-lessee or franchisor-franchisee, and, if the relationship is that of franchisor-franchisee whether the Court is divested of jurisdiction, and, whether the enactment of the aforesaid Federal regulations supercede local and State laws and may only be the subject of Federal jurisdiction.
The respondent in urging the proposition that the instant relationship between the parties transcends that of lessor-lessee to one of franchisor-franchisee places heavy reliance upon Mobil Oil Corporation v. Rubenfeld, 72 Misc.2d 392, 339 N.Y.S.2d 623, affirmed 77 Misc.2d 962, 357 N.Y.S.2d 589; Texaco Inc. v. A. A. Gold Inc., 78 Misc.2d 1050, 357 N.Y.S.2d 951; and Shell Oil Company v. Marinello, 120 N.J.Super. 357, 294 A.2d 253.
A careful reading and analysis of the aforementioned cases fails to elicit any substantiation that they are dispositive of the issues herein. Nor does there exist any similarity in the relationship between the parties herein to those described in the aforementioned cases.
For the relationship of franchisor-franchisee to exist there must be a contractual relationship under which the franchisee is granted, in return for certain fees, the right to market franchisor's goods, or services under franchisor's trade name, trademark or service mark, in accordance with tested uniform procedures and methods prescribed by franchisor and is to receive continuing assistance from the franchisor in the form of operational guidance, coordinated advertising, research and development, quality purchasing, training and education and other specialized management resources. (See Mobil v. Rubenfeld, supra.)
The various documents submitted herein as exhibits by petitioner describing the relationship between the adverse parties in no way conforms to the definition of a franchisor-franchisee. The documents clearly sustain the petitioner's position of a contractual relationship of lessor-lessee only and there can be no question that such a relationship is not in any way transcended.
To conclude from a reading of all of the aforementioned cases, including the case of Division of Triple Triple T Service, Inc. v. Mobil Oil Corp., 60 Misc.2d 720, 304 N.Y.S.2d 191, that respondent is in a similar or related circumstance as therein described would indeed be an exacerbated exercise in overreaching.
The relationship of the parties in the cited cases dealt with oil company agreements and situations wherein an oil company was directly involved in plying all its own wares, materials and gasoline. Here, the submitted documentation clearly establishes a lessor-lessee relationship. We are not herein dealing with a corporate giant joisting its power and will on an unwitting individual.
In fact in Paragraph 34 of the agreement between the parties herein there is a specific reference to the right of the lessor to designate or change suppliers. In addition there is absolutely no requirement that the respondent purchase tires, batteries, accessories or other wares or services from petitioner or its designees. The amount of gasoline sold by respondent is important only for the purpose of determining the additional rental due petitioner. An arrangement such as this is not unusual in such leases and falls far short of the factors requisite to creating a franchisor-franchisee relationship.
In Mobil Oil Corporation v. Rubenfeld, supra, the lower court decision after a scholarly analysis of 'franchises' determined that the relationship there between the parties under a sublease and a retail dealer agreement transcended that of lessor-lessee to that of franchisor-franchisee, further ground that the proceeding instituted was retaliatory in nature resulting from the refusal of the dealer to be coerced into illegally fixing gasoline prices or to buy accessories in violation of Federal antitrust laws. This however was determined on the merits and not on jurisdictional grounds. In fact, the Appellate Term in affirming, while remaining silent on the lessor-lessee or franchisor-franchisee issue, referred to the retaliatory nature of the proceeding and clearly enunciated the principle that the Civil Court has jurisdiction in a proceeding involving possession of real property even if the relationship between ...
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Arol Development Corp. v. Goodie Brand Packing Corp.
...that the document was a 'lease' regardless of what it was entitled. To the same effect was the holding in Skolnik v. Utica Shell Service Center, 81 Misc.2d 417, 366 N.Y.S.2d 301 (Civil Court, Kings Co.) (1975), where a document, in which the parties were referred to as 'franchisor' and 'fra......
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