85 A.D.2d 624 | N.Y. App. Div. | 1981
Lead Opinion
In an action, inter alia, for a permanent injunction, defendants appeal from a judgment of the Supreme Court, Westchester County (Beisheim, J.), entered September 16,1980, which, after a nonjury trial, inter alia, enjoined them from terminating plaintiff Tappan Motors, Inc., as a franchised Volvo dealer and dismissed the defendants’ counterclaim for damages. Judgment reversed, on the law and the facts, with costs, plaintiff’s complaint is dismissed, the parties’ “sales agreement” is declared terminated and defendants’ counterclaim for money damages is reinstated and remitted to the Supreme Court, Westchester County, for trial. Since November of 1960, Tappan Motors, Inc. (Tappan) has been a regularly franchised Volvo dealer. This franchise relationship was most recently reaffirmed in a contract, denominated a “sales agreement”, dated May 8,1973, which provided, inter alia, the following: Paragraph 1(G) — “Dealer will use its best efforts to promote and develop sales and service of Company Products in its Area of Responsibility.”;
Dissenting Opinion
Historically, statutes regulating automobile manufacturer-dealer relationships, such as, inter alia, section 197 of the General Business Law, entitled “Termination of contracts for sales of motor vehicles”, were enacted by State Legislatures not only to protect the buying public, but also as a matter of public policy, to furnish automobile dealers with some protection against unfair treatment by manufacturers. Implicit in such laws is the recognition of gross disparity of bargaining power between the manufacturers and local retailers and the recognition of a long history of abuse of dealers by manufacturers (Forest Hill Dodge, Inc. v Earns, 29 Wis 2d 78, 84-86; see Constitutional Obstacles to State “Good Cause” Restrictions on Franchise Terminations, 74 Col L Rev 1487,1489-1493). In essence, such statutes remove the question of substantial compliance with the obligations of the agreement from unilateral determination by the franchisor and place it before the court, with the burden of proof resting on the franchisor (see Shell Oil Co. v Marinello, 63 NJ 402, cert den 415 US 920). As a result, “good cause” or “cause” has become a sweeping regulation of the franchise relationship as a standard for a unilateral termination thereof by the franchisor (see 74 Col L Rev 1487, 1493). In determining that Volvo had sufficient cause to terminate Tappan’s franchise under the New York statute (General Business Law, § 197), the majority sets forth eight factors considered by it jointly to justify its action. One was that Tappan repeatedly complained about the allocation of automobiles Volvo furnished it for retail sale and threatened to dissuade customers from purchasing a Volvo elsewhere. With respect to the first prong of such factor, I submit that complaints by an automobile dealer to the effect that customer demand for the manufacturer’s product or certain models thereof greatly exceeds supply does not warrant criticism, let alone being used as one of the bases for termination of the dealer’s franchise. If anything, such complaints were undoubtedly symptomatic of the fact that defendants’ product had great marketability at the time and that defendants were enjoying significant financial and business success. It is belaboring the obvious to state that over the past few years the automobile industry has suffered immeasurably not from a surfeit of dealer demands for its products but, rather, from a devastating lack of demand. As to the second prong, i.e., Tappan’s alleged threats to dissuade customers from purchasing Volvos elsewhere, such conduct on the part of Tappan’s officers, if true, cannot be condoned. What is patently evident from the record herein is that at times relations between representatives of the parties became strained, discussions at meetings were heated, tempers became short and, as a result, things were
. “The law cares not about trifles.”
. That Kahn took meaningful affirmative action to meet Volvo’s specific demands set forth at the August 14, 1979 meeting is evidenced by his uncontradicted testimony describing what was done by Tappan between August 30, 1979 and late September, 1979, to wit: “With reference to the general program, there was a new roof installed on 300 North Broadway. The blacktop on the 300 North Broadway Service Department parking lot was repaired. The painting which had been begun during the summer of the offices of the Service Manager and Service Director’s offices was continued and completed. We completed painting the shop areas and the lower showroom areas. The paint was completed. *** As to the Parts Department, your Honor, we continued the inventory and completed it so that it would be put, be able to be put on a computer system. We also took the house across the street and built additional bins and shelves for additional Parts storage in that area. As far as the shop was concerned and equipment, we bought a brake drum and lathe machine which was delivered to us in September of’79 so that we would not have to sublet or send out any of our rotors or brake drums to be cut or ground. With regard to the Service Department, we assigned four men to the write-up desk in the morning. That is when the customers come in with their Service cars in the peak hours which are from 8 to 9:30 in the morning. Four men were assigned to it and a Service Secretary. The fourth man was the assistant to the Warranty Manager, and he was given the hours from 8 to 9:30 to stay at that desk and help them at peak times. We also replaced the Service secretary with a new one — her name was Robin Imray — who had some experience in customer relations. And she then took over the complete job of making Service appointments for customers, following up any inquiries they had, calling them telling them when their car was ready. When they came to pick up the cars in the evening, she cleared their credit cards and took care of the final preparation in checking over the bills so that they were correct, and expedited the customers’ entrance and exit from the dealership. We hired — we had had on the payroll a part-time girl, and we hired her once again, a high school girl, to work part-time and file the Service bulletins and technical bulletins and the copies of the customer repair orders that are kept in the Service Director’s office for fast reference. With regard to the customer lounge area, although we felt that the lounge we had in the 300 building was sufficient, as most people would leave their cars in the morning and go about their daily chores, we added an additional lounge in 310 North Broadway. We put five chairs and a table in and approximately 180 square feet was devoted to that in the lower showroom. As far as training of mechanics, we signed up and assigned Mr. Ed Fish to attend Volvo school — CIS School was their title of that school — on September 27th and September 28th. During September, I believe about the 21st of September, we assigned Mr. Wayne Jackson to attend the 1980 Products School, which was held on October 16th, which was a Volvo training school held in Rockleigh, New Jersey.”