AKKAYA v. PRIME TIME TRANSPORTATION INC (2007)

In an action for an accounting, the plaintiffs appeal from an order of the Supreme Court, Queens County (Price, J.), dated May 8, 2006, which denied their motion for summary judgment on the complaint and granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 “The right to an accounting rests on the existence of a trust or fiduciary relationship regarding the subject matter of the controversy at issue” (Town of New Windsor v. New Windsor Volunteer Ambulance Corps., 16 A.D.3d 403, 404, 791 N.Y.S.2d 159;  see El-Khoury v. Karasik, 265 A.D.2d 372, 373-374, 697 N.Y.S.2d 299;  Wesselmann v. International Images, 259 A.D.2d 448, 687 N.Y.S.2d 339;  Chalasani v. State Bank of India, N.Y. Branch, 235 A.D.2d 449, 450, 653 N.Y.S.2d 28).  “[T]here is no fiduciary relationship between a franchisee and a franchisor” (Marcella & Co. v. Avon Prods., 282 A.D.2d 718, 719, 724 N.Y.S.2d 192;  see Wilmington Trust Co. v. Burger King Corp., 34 A.D.3d 401, 826 N.Y.S.2d 205;  Bevilacque v. Ford Motor Co., 125 A.D.2d 516, 519, 509 N.Y.S.2d 595;  Mobil Oil Corp. v. Rubenfeld, 48 A.D.2d 428, 432, 370 N.Y.S.2d 943, affd. 40 N.Y.2d 936, 390 N.Y.S.2d 57, 358 N.E.2d 882).   Here, the defendant established, and the plaintiffs conceded, that the relationship between the parties is one of franchisor and franchisees.   Therefore, the defendant established its prima facie entitlement to summary judgment dismissing the complaint.   In response, the plaintiffs failed to raise a triable issue of fact regarding whether a fiduciary relationship existed.   Therefore, the Supreme Court properly granted that branch of the defendant's cross motion which was for summary judgment dismissing the complaint.