Plaintiff was injured when defendant Pardo struck him with a bicycle while making deliveries for defendant Higher Powered Pizza, a franchisee of Papa John’s. Shortly after the action was commenced, Papa John’s moved for summary judgment on the grounds that under the franchise agreement, Papa John’s was not vicariously hable for the acts of its franchisee, since it had no control over the franchisee’s day-to-day operations. The agreement and the sworn affidavit of Papa John’s general counsel were submitted in support of dismissal. Plaintiff contends that the prediscovery motion is premature, but fails to explain how discovery will lend merit to his case.
The motion court erred in denying summary judgment. The mere existence of a franchise agreement is insufficient to impose vicarious liability on the franchisor for the acts of its franchisee; there must be a showing that the franchisor exercised control over the day-to-day operations of its franchisee (Schoenwandt v Jamfro Corp., 261 AD2d 117 [1999]; Hong Wu v Dunkin’ Donuts, Inc., 105 F Supp 2d 83 [ED NY 2000], affd 4 Fed Appx 82 [2d Cir 2001]). Here, the franchise agreement expressly states that the franchisee “shall have full responsibility for the conduct and terms of employment for [its] employees and the day-to-day operation of [its] business.” As in the typical franchise agreement, the only control the agreement reserves to Papa John’s involves enforcement of standards in areas such as food quality and preparation, hours of operation, menu items, employee uniform guidelines, and packaging requirements. This includes the right to perform inspections, limited to review of sales and order forms, audits to ensure compliance with company standards, and observation of interaction with customers. Retention of such rights does not generally give rise to a legal obligation (105 F Supp 2d at 87). In any event, there was no reservation of control over the delivery process or delivery