Academy Reproduction Corp. v. Finelli

23 A.D.2d 767 | N.Y. App. Div. | 1965

In a special summary proceeding pursuant to statute (Penal Law, § 964), brought by petitioner, Academy Reproductions Corporation, to enjoin Salvator Finelli from using the trade name “ Academy Reproductions ” in his business, the said Finelli appeals from a judgment (erroneously designated as an order) of the Supreme Court, Westchester County, entered December 1, 1964 upon the court’s decision, which granted the application. Judgment (order) reversed on the law and the facts, without costs, and application denied, without costs, and without prejudice to such other proceeding or action as petitioner may be advised. The findings of fact implicit in the decision of the Special Term, insofar as they may be inconsistent herewith, are reversed, and new findings are made as indicated herein. The summary relief authorised by section 964 of the Penn! Daw shouW be invoked only when there is such conclusive evidence of intent to deceive the public that the absence of any factual issue would, in an appropriate case, authorize a summary judgment (Association of Contr. Plumbers v. Contracting Plumbers Assn., 302 N. Y. 495, 502; Matter of Industrial Plants Corp. v. Industrial Liquidating Co., 286 App. Div. 568, 571). In our opinion, the petitioner here failed to sustain such burden (cf. Matter of Technical Color é Chem. Works V. Felkay, 21 A D 2d 787; Matter of Ityan é Son v. Lancaster Homes, 19 A D 2d 14). Beldoek, P. J., Ughetta, Hill, Rabin and Benjamin, JJ., concur.