Plaintiff was injured when he was hit by a bicyclist who was making deliveries for defendant, a franchisee of Papa John's. The First Department dismissed the complaint as against Papa John's, in Martinez v. Higher Powered Pizza, Inc., which was decided on September 13, 2007.

"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." The court noted that, here, the franchise agreement expressly states that the franchisee will have full responsibility for the terms of employment and conduct of its employees and for the day-to-day operation of its business, and that the only control the agreement reserves to Papa John's involves the enforcement of corporate standards regarding food quality and preparation, hours of operation, menu items, employee uniform guidelines, and packaging requirements.

Finally, the court said, Papa John's did not reserve control over the product-delivery process; the bicyclist was not employed by Papa John's; and Papa John's does not own or operate a restaurant in New York County.