Travalja v. Tours

213 A.D.2d 155, 622 N.Y.S.2d 961

Opinion

—Judgment, Supreme Court, New York County (Bruce Wright, J.), entered July 2, 1993, dismissing the complaint, and bringing up for review the order, same court and Justice, entered October 8, 1991, which granted defendant Maieliano Tours’ motion for summary judgment, unanimously affirmed, without costs. The appeal from aforesaid order is unanimously dismissed as subsumed within the appeal from the aforesaid judgment, without costs. The appeal from the order, same court and Justice, entered November 5, 1992, which denied plaintiffs’ motion for leave to amend the complaint, is deemed to be from an order denying reargument, and, so considered, the appeal is unanimously dismissed as taken from a nonappealable order, without costs.

Unlike Fogel v Hertz Intl. (141 AD2d 375) on which plaintiffs rely, the car rental voucher issued to plaintiffs clearly indicates that defendant Europa Cars was an independent contractor and not defendant Maieliano Tours’ agent, and thus cannot "serve as a basis for vicarious liability” on the latter’s part (supra, at 376). Nor do plaintiffs come forward with any evidence of advertising by defendant Maieliano of the type that was found in Fogel (supra, at 376) "to constitute a holding out to the public” sufficient - to raise an issue whether vicarious liability could be established through an estoppel. Concur—Murphy, P. J., Sullivan, Rosenberger and Ross, JJ.