Ahmad v. Ennab

638 The plaintiffs were involved in an automobile accident in Israel while passengers in a rented car. They claim that Budget Rent A Car is liable under theories of apparent authority, implied agency and holding out to the public through advertising that it was the lessor of the subject vehicle. Without giving notice to the parties of its intention to do so, the court treated the cross motion to dismiss as one for summary judgment and granted judgment in favor of Budget Rent A Car. This was error (see, CPLR 3211 [c]). However, the plaintiffs thereafter moved for reargument, at which time they had a full and fair opportunity to argue the merits as to summary judgment. Upon granting reargument, the court adhered to its original determination in favor of defendant Budget Rent A Car. Under these circumstances, the error was cured and a reversal on procedural grounds is not required (see, O’Hara v Del Bello, 62 AD2d 1034, mod on other grounds 47 NY2d 363). However, we find that triable issues of fact exist which warrant setting aside the granting of summary judgment in favor of the defendant Budget Rent A Car. Factual issues exist as to the degree of control, corporate structure and the principal-agent relationship between Budget Rent A Car and the Israeli franchise operating under its name and logo. In addition, there is a substantial factual dispute as to the actual ownership of the vehicle involved in the accident in Israel. Therefore, summary judgment in favor of Budget Rent A Car was inappropriate (see, Fogel v Hertz Intl., 141 AD2d 375; Jacobson v Princess Hotels Intl., 101 AD2d 757, 759). Thompson, J. P., Lawrence, Kunzeman and Harwood, JJ., concur.