        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

788
CA 15-00219
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, CURRAN, AND TROUTMAN, JJ.


VAN WIE CHEVROLET, INC., DOING BUSINESS AS
EVANS CHEVROLET, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                                  OPINION AND ORDER

GENERAL MOTORS, LLC, DEFENDANT-APPELLANT-RESPONDENT,
ET AL., DEFENDANT.
(APPEAL NO. 3.)


LAVIN, O’NEIL, CEDRONE & DISIPIO, NEW YORK CITY (JOHN J. O’DONNELL, OF
THE PENNSYLVANIA BAR, ADMITTED PRO HAC VICE, OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

BRESSLER, AMERY & ROSS, NEW YORK CITY (ERIC L. CHASE OF COUNSEL), AND
RIVETTE & RIVETTE, P.C., SYRACUSE, FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from a judgment of the Supreme Court,
Onondaga County (Hugh A. Gilbert, J.), entered November 10, 2014. The
judgment, among other things, granted in part the motion of defendant
General Motors, LLC to dismiss the complaint, granted in part the
motion of defendant General Motors, LLC for summary judgment and
granted in part the motion of plaintiff for summary judgment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying plaintiff’s motion in its
entirety, granting the motion of General Motors, LLC in its entirety,
and granting judgment in favor of defendant General Motors, LLC as
follows:

          It is ADJUDGED AND DECLARED that defendant General
     Motors, LLC did not violate Vehicle and Traffic Law § 463
     (2) (ff) (1),

and as modified the judgment is affirmed without costs.

     Opinion by CENTRA, J.P.:

                                  I.

     The primary issue raised on this appeal is whether defendant,
General Motors, LLC (GM), violated Vehicle and Traffic Law § 463 (2)
(ff) (1) when it approved the relocation request of a Chevrolet dealer
in the Syracuse area, but failed to give notice thereof to plaintiff,
Van Wie Chevrolet, Inc., doing business as Evans Chevrolet, another
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                                                          CA 15-00219

Chevrolet dealer in the same area.   We conclude that no violation of
the statute occurred.

                                 II.

     Plaintiff and defendant Sharon Chevrolet, Inc. (Sharon) both
operate Chevrolet dealerships, franchised by GM. Plaintiff and GM
entered into a standard GM Dealer Sales and Service Agreement (Dealer
Agreement). Pursuant to the Dealer Agreement, every GM dealer is
assigned an “Area of Primary Responsibility” (APR). The APR is
comprised of census tracts based upon the geography in which a
particular dealer is deemed to have a competitive advantage in
attracting customers. The APR is used by GM to assess the performance
of dealers in its dealer network.

     Sharon, whose dealership is located 5.28 miles away from
plaintiff’s dealership, requested approval from GM to relocate its
dealership to a site that is 3.97 miles away from plaintiff’s
dealership. At first, GM denied Sharon’s request, concluding that the
relocation would not be in the interests of GM, Chevrolet, or the GM
dealer network in Syracuse. However, after Sharon commenced a federal
lawsuit against GM seeking monetary damages for GM’s denial of its
relocation request, GM approved the relocation and settled the
lawsuit.

     Plaintiff commenced this action against GM and Sharon seeking to
enjoin GM from taking any action to relocate Sharon. Supreme Court
(DeJoseph, J.) granted Sharon’s motion to dismiss the complaint
against it, and granted in part GM’s motion to dismiss the complaint
against it by dismissing five causes of action, leaving only a cause
of action for the violation of Vehicle and Traffic Law § 463 (2) (ff)
(1) and a cause of action for breach of fiduciary duty (appeal No. 1).
Following discovery, plaintiff and GM moved for summary judgment on
the remaining two causes of action. Supreme Court (Gilbert, J.)
granted plaintiff’s motion in part on its cause of action pursuant to
section 463 (2) (ff) (1) and granted GM’s motion in part by dismissing
the cause of action for breach of fiduciary duty (appeal No. 2). A
judgment was thereafter entered on the orders in appeal Nos. 1 and 2
(appeal No. 3). GM appealed from the judgment in appeal No. 3, and
plaintiff cross-appeals from the orders in appeal Nos. 1 and 2.

                                 III.

     As a preliminary matter, although plaintiff did not cross-appeal
from the judgment in appeal No. 3, we exercise our discretion to treat
plaintiff’s notice of cross appeal in appeal Nos. 1 and 2 as valid and
deem its cross appeal as taken from the judgment in appeal No. 3 (see
Ironwood, L.L.C. v JGB Props., LLC [appeal No. 2], 130 AD3d 1527,
1528, lv denied 26 NY3d 908). As another preliminary matter, we
reject plaintiff’s contention that the appeal and cross appeal are
moot. In September 2015, GM approved Sharon’s request to relocate to
a different site than it had previously requested. In the letter
approving the request, GM explained that Sharon’s prior relocation
request was currently “closed” as a result of the judgment rendered in
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                                                         CA 15-00219

this case, but it further explained that the status of that prior
relocation request might change if GM prevailed on the pending appeal.
GM stated that, if it prevailed on the appeal, then Sharon would have
to choose whether to pursue its current proposed relocation or its
prior relocation request. We agree with GM that Sharon did not
withdraw its prior relocation request, which is the subject of this
appeal, and the appeal and cross appeal are therefore not moot.

                                 IV.

     Plaintiff’s second cause of action alleges that GM violated the
notification requirements of Vehicle and Traffic Law § 463 (2) (ff)
(1). Plaintiff sought a declaration that GM’s approval of Sharon’s
relocation would result in a modification of plaintiff’s APR and its
franchise; that GM violated the notice requirements under the law;
that the modification of plaintiff’s franchise would adversely affect
plaintiff’s rights, obligations, investments, or return on
investments; and that the modification was not undertaken in good
faith or for good cause.

     New York enacted the Franchised Motor Vehicle Dealer Act (Dealer
Act), codified at Vehicle and Traffic Law § 460 et seq., to protect
dealers from “[u]nfair business practices by franchisors” (§ 463).
“By enacting the Dealer Act, the legislature sought to address a
historical inequality in the vehicle franchise business that favored
automobile manufacturers over motor vehicle dealers” (Beck Chevrolet
Co., Inc. v General Motors LLC, 27 NY3d 379, 393, rearg denied 27 NY3d
1187). “The imbalance placed dealers at the mercy of manufacturers
who were able to draft and impose protectionist agreements favorable
to manufacturers, placing at risk a dealer’s financial investment”
(id.). The statute “ ‘provide[s] certain basic protection for the
dealer in areas where such protection is deemed necessary[, and] . . .
the protection afforded the dealer through the [statute] . . .
counterbalance[s] the numerous protections afforded the manufacturer
under the terms of its franchise agreement with the dealer’ ” (id.,
quoting the Memorandum in Support of Legislation). The Dealer Act
thus “statutorily overrid[es] agreement provisions that [are] unfair
to dealers” (id. at 394).

     The Dealer Act specifically addresses relocations of dealers and
notice to other dealers of the relocation. Vehicle and Traffic Law
§ 463 (2) (cc) (1) provides that it is unlawful for any franchisor to,
inter alia, “relocat[e] an existing new motor vehicle dealer into the
relevant market area of an existing franchise motor vehicle dealer of
the same line make unless the franchisor provides notice pursuant to
the terms of this subdivision.” Written notice of the proposed
relocation must be given to all dealers “that have a relevant market
area that encompasses the proposed site,” and the franchisor has the
“burden of proving that there exists good cause for any such . . .
relocation” (§ 463 [2] [cc] [1]). Section 463 (2) (cc) does not
apply, however, to the relocation of

          “an existing new motor vehicle dealer within that
          dealer’s own existing relevant market area,
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                                                         CA 15-00219

          provided that the relocation not be to a site
          within the relevant market area of a licensed new
          motor vehicle dealer for the same line make of
          motor vehicle, unless such existing franchise was
          previously located within such new motor vehicle
          dealer’s relevant market area” (§ 463 [2] [cc] [2]
          [i]).

Inasmuch as it is undisputed that plaintiff’s location and Sharon’s
current and proposed location were within the same relevant market
area, we conclude that the exception under section 463 (2) (cc) (2)
(i) applied, and plaintiff was not entitled to notice of the proposed
relocation pursuant to section 463 (2) (cc) (1). Plaintiff does not
contest the dismissal of its first cause of action, which alleges a
violation of that section.

     As stated above, plaintiff’s second cause of action alleges a
violation of Vehicle and Traffic Law § 463 (2) (ff) (1), which
provides that it is unlawful for any franchisor “[t]o modify the
franchise of any franchised motor vehicle dealer unless the franchisor
notifies the franchised motor vehicle dealer, in writing, of its
intention to modify the franchise of such dealer at least [90] days
before the effective date thereof, stating the specific grounds for
such modification.” Under that subdivision, a modification “means any
change or replacement of any franchise if such change or replacement
may substantially and adversely affect the new motor vehicle dealer’s
rights, obligations, investment or return on investment” (§ 463 [2]
[ff] [2]). “A modification is deemed unfair if it is not undertaken
in good faith; is not undertaken for good cause; or would adversely
and substantially alter the rights, obligations, investment or return
on investment of the franchised motor vehicle dealer under an existing
franchise agreement” (§ 463 [2] [ff] [3]).

     The decision by the Court of Appeals in Beck Chevrolet Co., Inc.
(27 NY3d 379) was issued after the judgment was rendered in this case.
In that case, GM gave notice to its dealer that it was changing its
area of geographic sales and service advantage (AGSSA) (id. at 387),
which was a subset of the dealer’s APR (id. at 396). The Court,
answering a question certified by the Second Circuit Court of Appeals,
held that “a change in the AGSSA is a change to the franchise”
inasmuch as a “revised AGSSA has the potential to significantly impact
the franchise agreement” (id.). The Court further explained, however,
that, “by its terms, section 463 (2) (ff) (1) is concerned only with
those modifications that result in negative consequences for the
dealer, and which meet its requirements for determining whether a
change is statutorily impermissible” (id. [emphasis added]). Thus, a
revision to the AGSSA did not “categorically violate[] section 463 (2)
(ff)” (id.), but rather the change needed to be “assessed on a case-
by-case basis, upon consideration of the impact of the revision on a
dealer’s position” (id. at 397).

     In light of the decision in Beck Chevrolet Co., Inc., GM has
abandoned its argument that a change in plaintiff’s APR was not a
modification to the franchise under Vehicle and Traffic Law § 463 (2)
                                 -5-                           788
                                                         CA 15-00219

(ff). GM maintains, however, that while it must give notice to
plaintiff of any change in its APR, it is not required to give
plaintiff notice under section 463 (2) (ff) (1) of GM’s approval of
Sharon’s relocation request. GM contends that plaintiff’s APR will
not change until after Sharon relocates, and no notice is required
before then. Plaintiff, on the other hand, contends that it must have
notice of the proposed relocation before it occurs, because the
relocation will eventually result in a changed APR.

     We agree with GM that the change to plaintiff’s franchise is only
the change in the APR, and that has not occurred yet, so no notice is
yet required under Vehicle and Traffic Law § 463 (2) (ff) (1). We
reject plaintiff’s contention that GM’s approval of Sharon’s
relocation request ipso facto results in a modification of plaintiff’s
franchise for which notice may be required under section 463 (2) (ff)
(1). To construe section 463 (2) (ff) (1) to require notice to a
dealer when a franchisor approves a relocation request of another
dealer would essentially render section 463 (2) (cc) (1), which
requires notice to certain dealers of relocations of other dealers,
superfluous. It is well settled that

          “[a] court must consider a statute as a whole,
          reading and construing all parts of an act
          together to determine legislative intent . . . ,
          and, where possible, should ‘harmonize[] [all
          parts of a statute] with each other . . . and
          [give] effect and meaning . . . to the entire
          statute and every part and word thereof’ ”

(Friedman v Connecticut Gen. Life Ins. Co., 9 NY3d 105, 115, citing
McKinney’s Cons Laws of NY, Book 1, Statutes § 98; see Yatauro v
Mangano, 17 NY3d 420, 426-427). Courts should construe a statute “to
avoid rendering any of its language superfluous” (Matter of Monroe
County Pub. Sch. Dists. v Zyra, 51 AD3d 125, 130; see Matter of Ebanks
v Skyline NYC, LLC, 70 AD3d 943, 945).

     By enacting Vehicle and Traffic Law § 463 (2) (cc), the
Legislature saw fit to require franchisors to give notice to certain
dealers when relocating another motor vehicle dealer to their relevant
market area. If we construe section 463 (2) (ff) (1) to require
notice to be given to all dealers who assert that the proposed
relocation would result in a modification of their franchise, that
would not be harmonizing the two statutory provisions (see generally
Matter of Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of
Huntington, 97 NY2d 86, 91 [must read statutes together and “harmonize
the related provisions in a way that renders them compatible”]).
Instead, consistent with Beck Chevrolet Co., Inc., we conclude that a
modification to plaintiff’s APR is a change to its franchise for which
notice under section 463 (2) (ff) (1) may be required if the
modification substantially and adversely affects plaintiff’s rights,
obligations, investments, or return on investments. But GM’s approval
of Sharon’s relocation, by itself, is not a change to plaintiff’s
franchise for which notice under section 463 (2) (ff) (1) is required.
                                 -6-                           788
                                                         CA 15-00219

     Inasmuch as plaintiff’s second cause of action sought a
declaration, the court erred in failing to declare the rights of the
parties (see CPLR 3001; Kemper Independence Ins. Co. v Ellis, 128 AD3d
1529, 1530). We conclude that the judgment should be modified by
denying plaintiff’s motion in its entirety, granting GM’s motion in
its entirety, and declaring that GM did not violate Vehicle and
Traffic Law § 463 (2) (ff) (1).

                                  V.

     On its cross appeal, plaintiff contends that the court erred in
dismissing the causes of action for breach of contract, breach of
implied covenant of good faith and fair dealing, equitable estoppel,
and breach of fiduciary duty. We conclude that those causes of action
were properly dismissed.

     The court dismissed the causes of action for breach of contract,
breach of implied covenant of good faith and fair dealing, and
equitable estoppel upon GM’s motion pursuant to CPLR 3211 (a) (1) and
(7). On such a motion, “plaintiff’s complaint is to be afforded a
liberal construction, . . . the facts alleged therein are accepted as
true, and . . . plaintiff is to be afforded every possible favorable
inference in order to determine whether the facts alleged in the
complaint fit within any cognizable legal theory” (Gilewicz v Buffalo
Gen. Psychiatric Unit, 118 AD3d 1298, 1299 [internal quotation marks
omitted]).

     Article 17.12 of the Dealer Agreement provided that the agreement
“is governed by the laws of the State of Michigan.” Parties are
“generally free to reach agreements on whatever terms they prefer,”
including choice of law provisions (Brown & Brown, Inc. v Johnson, 25
NY3d 364, 368; see Matter of Smith Barney, Harris Upham & Co. v
Luckie, 85 NY2d 193, 201, rearg denied 85 NY2d 1033, cert denied 516
US 811). Such provisions will be upheld unless “the chosen law
violates some fundamental principle of justice, some prevalent
conception of good morals, [or] some deep-rooted tradition of the
common weal” (Brown & Brown, Inc., 25 NY3d at 368 [internal quotation
marks omitted]). “This public policy exception is reserved for those
foreign laws that are truly obnoxious[, and] [t]he party seeking to
invoke the exception bears a heavy burden of proving that application
of [the chosen] law would be offensive to a fundamental public policy
of this State” (id. at 368-369 [internal quotation marks omitted]).

     Here, plaintiff failed to meet its burden of establishing that
the public policy exception applied and that New York law should
govern this dispute. Plaintiff’s contention that it is a New York
business and that the claims relate to New York is clearly
insufficient to override the parties’ choice of law provision in the
Dealer Agreement.

                                  A.

     Plaintiff’s fourth cause of action alleges that GM breached the
Dealer Agreement, including articles 4.1, 4.2, and 4.3. Plaintiff
                                 -7-                           788
                                                         CA 15-00219

alleges that Sharon’s proposed relocation and impact on plaintiff’s
APR was in essence a unilateral modification by GM of the Dealer
Agreement.

     “To prevail on its claim for breach of contract . . . ,
[plaintiff] must establish by a preponderance of the evidence that (1)
there was a contract, (2) the other party breached the contract, and
(3) the breach resulted in damages to the party claiming breach” (Bank
of Am., NA v First Am. Title Ins. Co., 499 Mich 74, 100, 878 NW2d 816,
829 [2016]). “If the language of a contract is unambiguous, [courts]
must enforce the contract as written” (id. at 86, 821).

     Article 4.1 of the Dealer Agreement provided that GM would
“monitor marketing conditions and strive, to the extent practicable,
to have dealers appropriate in number, size and location . . .”
Article 4.2 of the Dealer Agreement provided that, if GM “determines
that marketing conditions warrant a change in Dealer’s [APR], it will
advise Dealer in writing of the proposed change, the reasons for it,
and will consider any information the Dealer submits . . . If [GM]
thereafter decides the change is warranted, it will issue a revised
Notice of [APR].” Article 4.3 of the Dealer Agreement provided that
GM had no obligation “to provide notice . . . for a dealer replacement
or relocation, and such events are within the sole discretion of [GM]
pursuant to its business judgment.”

     We conclude that the court properly dismissed the breach of
contract cause of action on the ground that the Dealer Agreement did
not obligate GM to provide notice or obtain approval from plaintiff
before relocating another dealership. Although article 4.2 of the
Dealer Agreement required GM to provide notice to plaintiff of any
change in its APR, GM did not violate that section because it has not
yet changed plaintiff’s APR. What plaintiff is really seeking is
notice of the relocation, but article 4.3 of the Dealer Agreement
specifically provides that GM is not required to provide notice of
another dealer relocation. Plaintiff therefore failed to state a
claim for breach of contract because there simply was no breach, as
established by the language of the Dealer Agreement (see generally
CPLR 3211 [a] [1]; Sheriff’s Silver Star Assn., Inc. v County of
Oswego, 27 AD3d 1104, 1105-1106, lv denied 7 NY3d 712).

                                  B.

     Plaintiff’s fifth cause of action alleges that GM owed an implied
contractual duty of good faith and fair dealing to plaintiff, and GM
breached that duty by approving Sharon’s relocation.

     There are cases from Michigan that state that “Michigan does not
recognize a cause of action for breach of the implied covenant of good
faith and fair dealing” (Fodale v Waste Mgmt. of Michigan, Inc., 271
Mich App 11, 35, 718 NW2d 827, 841 [2006]; see Engel Mgmt., Inc. v
Ford Motor Credit Co., 2009 WL 348828 *4-5 [Mich Ct App, Feb. 12,
2009, No. 279868], lv denied 484 Mich 869, 769 NW2d 686 [2009]; see
also Robert Basil Motors, Inc. v General Motors Corp., 2004 WL
                                 -8-                           788
                                                         CA 15-00219

1125164, *10 [WD NY, Apr. 17, 2004, No. 13-CV-315A]). However, as
explained by a Federal Court, while Michigan does not recognize an
independent tort action for breach of implied covenant of good faith
and fair dealing, it does recognize a breach of contract claim based
on the defendant’s breach of the duty of good faith and fair dealing
(see McLiechey v Bristol W. Ins. Co., 408 F Supp 2d 516, 522 [WD Mich
2005], affd 474 F3d 897 [6th Cir 2007]; see also Lancia Jeep Hellas
S.A. v Chrysler Group Intl. LLC, 2016 WL 1178303, *9 [Mich Ct App,
Mar. 24, 2016, No. 329481]; see generally Hubbard Chevrolet Co. v
General Motors Corp., 873 F2d 873, 876 [5th Cir 1989], reh’g denied
879 F2d 1435 [1989], cert denied 493 US 978 [1989]). “Breach of
contract actions based upon the breach of an implied covenant of good
faith and fair dealing are limited to contracts where a contractual
term leaves the manner of performance to one party’s discretion”
(McLiechey, 408 F Supp 2d at 522; see Buckhardt v City Natl. Bank of
Detroit, 57 Mich App 649, 652, 226 NW2d 678, 680 [1975]; Lancia Jeep
Hellas S.A., 2016 WL 1178303, at *9). “However, there is no implied
duty of good faith where the parties have ‘unmistakably expressed
their respective rights,’ because the implied duty ‘cannot override
express contract terms’ ” (Lancia Jeep Hellas S.A., 2016 WL 1178303,
at *9; see Hubbard Chevrolet Co., 873 F2d at 877).

     Here, as noted above, article 4.3 of the Dealer Agreement
provides that GM had no obligation “to provide notice . . . for a
dealer replacement or relocation, and such events are within the sole
discretion of [GM] pursuant to its business judgment.” Thus, the
Dealer Agreement “ ‘unmistakably expressed’ ” terms regarding
relocations, and there is no implied duty of good faith with respect
thereto (Hubbard Chevrolet Co., 873 F2d at 878; see Parlovecchio
Bldg., Inc. v Charter County of Wayne Bldg. Auth., 2014 WL 631264, *4
[Mich Ct App, Feb. 13, 2014, No. 313257], lv denied 497 Mich 868
[2014]).

                                  C.

     Plaintiff’s seventh cause of action alleges that GM should be
equitably estopped from approving Sharon’s relocation. Plaintiff
alleges that it “has done all the tasks, and fulfilled all the
requirements that GM has imposed upon [plaintiff],” including
expending substantial sums for a certain program, yet GM first
disapproved, then approved, Sharon’s relocation, which would do
grievous harm to plaintiff.

     Estoppel is an equitable doctrine that “ ‘prevents one party to a
contract from enforcing a specific provision contained in the
contract’ ” (City of Grosse Pointe Park v Michigan Mun. Liab. & Prop.
Pool, 473 Mich 188, 203-204, 702 NW2d 106, 116 [2005]). A party
seeking to invoke the doctrine must establish “(1) a false
representation or concealment of a material fact, (2) an expectation
that the other party will rely on the misconduct, and (3) knowledge of
the actual facts on the part of the representing or concealing party”
(Cincinnati Ins. Co. v Citizens Ins. Co., 454 Mich 263, 270, 562 NW2d
648, 651 [1997], reh’g denied 456 Mich 1201 [1997]; see Okrie v State
                                 -9-                           788
                                                         CA 15-00219

of Michigan, 2016 WL 3365308, *7 [Mich Ct App, June 16, 2016, No.
326607]).

     We agree with the court that the complaint fails to state any
misrepresentations that were made by GM. Plaintiff alleges in the
complaint that it would be inequitable for GM “to deny its
misconduct,” but alleges no actual misrepresentation that was made by
GM. The complaint does not state a cause of action for equitable
estoppel, and the cause of action was therefore properly dismissed.

                                  D.

     Plaintiff’s third cause of action alleges that GM “owe[d]
significant and material fiduciary duties to [p]laintiff.” Plaintiff
listed the factors establishing the fiduciary relationship, including
various requirements imposed upon plaintiff under the terms of the
Dealer Agreement. Plaintiff alleges that GM breached its fiduciary
duty by approving Sharon’s relocation, which it knew would cause great
harm to plaintiff. Although this cause of action survived GM’s motion
to dismiss, the court dismissed it upon GM’s motion for summary
judgment.

     Under Michigan law, “[a] fiduciary relationship arises when one
reposes faith, confidence, and trust in another’s judgment and advice”
(Fassihi v Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., 107 Mich
App 509, 515, 309 NW2d 645, 648 [1981]; see Ulrich v Federal Land Bank
of St. Paul, 192 Mich App 194, 196, 480 NW2d 910, 911 [1992]). “[A]
fiduciary duty arises where there is a fiduciary relationship between
the parties” (Robert Basil Motors, Inc., 2004 WL 1125164, at *9
[applying Michigan law]). Although whether a fiduciary relationship
exists is generally a question of fact, Michigan courts are “reluctant
to extend the cause of action for breach of fiduciary relationship
beyond the traditional context” (Bero Motors v General Motors Corp.,
2001 WL 1167533, *4 [Mich Ct App, Oct. 2, 2001, No. 224190], lv denied
467 Mich 868, 651 NW2d 917 [2002]).

     In Bero Motors, the Michigan Court of Appeals held that no
fiduciary relationship existed between GM and its franchisee (id. at
*5). The Court held that “the parties were ‘experienced for-profit
entities in a commercial setting’ and plaintiff’s simple allegations
of reliance on another was insufficient to establish a fiduciary
relationship” (id.). In addition, in that case, as in this case, a
provision of the franchise agreement stated that no fiduciary
obligations were created by the agreement (id.). The Court held that
this provision “provided notice of the context of the parties’ course
of business and thus any reposing of faith, confidence, and trust, and
reliance upon the judgment and advice of another by plaintiff would
have been misplaced, self-defeating and unwise” (id.). The holding in
Bero Motors was followed by Federal District Courts applying Michigan
law in other cases involving automobile makers and dealers, with the
courts dismissing the breach of fiduciary duty claims (see Ford Motor
Co. v Ghreiwati Auto, 945 F Supp 2d 851, 868 [ED Mich 2013] [holding
that the defendants “do not make allegations that take this case’s
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                                                         CA 15-00219

controversy outside of a commercial setting”]; see also Robert Basil
Motors, Inc., 2004 WL 1125164, at *9). We therefore agree with GM
that the breach of fiduciary duty claim was properly dismissed in this
case.

                                 VI.

     Accordingly, we conclude that the judgment should be modified by
denying plaintiff’s motion in its entirety, granting GM’s motion in
its entirety, and declaring that GM did not violate Vehicle and
Traffic Law § 463 (2) (ff) (1).




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
