B. Merrick Road, LLC v. Chriso Food Services, Inc.

May 8, 2012
Versions:95 A.D.3d 913
944 N.Y.S.2d 597
先行体験 The user wants me to convert a legal document from a provided image and OCR text into semantic HTML. **Case Information:** - Case Name: B. MERRICK RD., LLC, et al., Respondents, v CHRISO FOOD SERVICES, INC., Also Known as CARISO FOOD SERVICE, INC., Doing Business as EAST BAY DINER (SEAFORD), et al., Appellants. - Short Name: B. Merrick Rd., LLC v. Chriso Food Servs., Inc. - Citation: 944 NYS2d 597 (This is from page 1 OCR). Also the page numbers are 913 and 914. - Court: Supreme Court, Appellate Division, Second Department (Inferred from the reporter/judges/style, usually NY AD cases appear in this format. The OCR doesn‘t explicitly state the court name but mentions Supreme Court, Nassau County and Supreme Court, Queens County in the text, and the judges listed [Angiolillo, Dickerson, Leventhal, Miller / Mastro, Balkin, Sgroi, Cohen] are AD2 judges). - Date: The text says Bucaria, J.‘s order was dated March 14, 2011. The appellate decision date isn‘t explicitly on the page, but I will look for clues. Actually, usually these reporters have the date at the top, which is cut off. I‘ll check the citation: 944 N.Y.S.2d 597. It was decided on May 1, 2012. I‘ll use that if possible, or omit if not found in text. Wait, the citation `[944 NYS2d 597]` is in the text. - Judges: Angiolillo, J.P., Dickerson, Leventhal and Miller, JJ., concur (for the case ending on 913); Mastro, A.P.J., Balkin, Sgroi and Cohen, JJ., concur (for the main case starting on 913). **Structure:** - There is a partial opinion at the top of page 913. I should skip this as per “Multi-Opinion Documents” rule. - The main opinion starts with “B. MERRICK RD., LLC...” - Page markers: `` and ``. **Metadata Extraction:** - Case Name: B. MERRICK RD., LLC, et al., Respondents, v CHRISO FOOD SERVICES, INC., Also Known as CARISO FOOD SERVICE, INC., Doing Business as EAST BAY DINER (SEAFORD), et al., Appellants. - shortName: B. Merrick Rd., LLC v. Chriso Food Servs., Inc. - citation: 944 NYS2d 597 - court: N.Y. App. Div. (Second Department) - docket: Not explicitly given, but the text mentions March 14, 2011 as the lower court date. I‘ll skip the docket if not found. - date: May 1, 2012 (based on external knowledge of this citation, but I should stick to the text. The text doesn‘t give the appellate date. I will omit it). **Content Analysis:** - Caption/Metadata: B. Merrick Rd., LLC... Appellants. [944 NYS2d 597]— - Paragraph 1: “In an action, inter alia, to enjoin...” - Paragraph 2: “Ordered that the order is modified...” - Paragraph 3: “In this action arising out of a dispute...” (Starts on 913, continues on 914). - Paragraph 4: “Moreover, the Supreme Court should have granted...” - Paragraph 5: “The Supreme Court also should have granted...” - Paragraph 6: “The defendants’ remaining contentions are without merit.” - Signature: Mastro, A.P.J., Balkin, Sgroi and Cohen, JJ., concur. - Start of next case: Fariha Basalel... (Stop before this). **Citations to wrap:** - `During v City of New Rochelle, N.Y., 55 AD3d 533, 534 [2008]` (In the part I skip). - `CPLR 3211 (a) (3)` -> `N.Y. C.P.L.R. 3211(a)(3)` - `CPLR 3211 (a) (7)` -> `N.Y. C.P.L.R. 3211(a)(7)` - `Kadish v Roosevelt Raceway Assoc., 183 AD2d 874 [1992]` - `Baker v Latham Sparrowbush Assoc., 129 AD2d 667, 668 [1987]` - `107 Realty Corp. v National Petroleum U.S.A., 181 AD2d 817, 818 [1992]` - `Damianos Realty Group, LLC v Fracchia, 35 AD3d 344, 344-345 [2006]` - `Atlantic St. John, LLC v Yeomans, 26 AD3d 266, 267 [2006]` - `Eagle Comtronics v Pico Prods., 256 AD2d 1202, 1203 [1998]` - `Precision Concepts v Bonsanti, 172 AD2d 737, 738 [1991]` **Formatting details:** - Remove line breaks, rejoin hyphens (none obvious in OCR but I will check). - Straight quotes. - No code fences. **Step-by-step Construction:** 1. `
` block. 2. `` 3. Opinion text with tags. 4. Next case begins, so I stop after the concurrence line. Wait, the prompt says “If the document contains multiple opinions (e.g., end of one case and start of another), convert only the MAIN opinion — the one with a complete case caption and full opinion body. Skip partial content from a previous case that appears at the beginning of the document.” - Part 1: End of a case (starts at the top of 913, ends at Angiolillo...). Skip. - Part 2: Main case: B. Merrick Rd., LLC... Ends with “Mastro... concur.” Convert this. - Part 3: Start of another case: Fariha Basalel... Skip. Let‘s refine the metadata. Court: N.Y. App. Div. (based on “AD2d” and “AD3d” citations and the judge names). Citation: 944 N.Y.S.2d 597 (OCR has 944 NYS2d 597). Short name: B. Merrick Rd., LLC v. Chriso Food Servs., Inc. Case 1 citation: `B. Merrick Rd., LLC v Chriso Food Servs., Inc., 944 N.Y.S.2d 597 (App. Div. 2d Dept. 2012)`. Wait, the OCR says `[944 NYS2d 597]-`. I will use that. Tags for CPLR: `jurisdiction=“NY“` `cite=“N.Y. C.P.L.R. 3211(a)(3)“` (Normalizing `CPLR 3211 (a) (3)`) Citations: `Kadish v Roosevelt Raceway Assoc., 183 AD2d 874 [1992]` -> case=“Kadish v. Roosevelt Raceway Assoc.” cite=“183 AD2d 874” court=“N.Y. App. Div.” date=“1992” Note: NY AD cases usually use brackets for the year. The text says: `see Kadish v Roosevelt Raceway Assoc., 183 AD2d 874 [1992]; Baker v Latham Sparrowbush Assoc., 129 AD2d 667, 668 [1987]`. Let‘s start the HTML. ```html

In an action, inter alia, to enjoin the defendants from using the trade name and service mark East Bay Diner, the defendants appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated March 14, 2011, as denied their cross motion pursuant to CPLR 3211 (a) (3) and (7) to dismiss the complaint.

Ordered that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants’ cross motion which were pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted by the plaintiff Costas Mourelatos for lack of standing, pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against the defendants DAP Diner, Inc., doing business as East Bay Diner (Bellmore), and Dennis Pavlatos for failure to state a cause of action, and pursuant to CPLR 3211 (a) (7) to dismiss the sixth cause of action insofar as asserted against all of the defendants for failure to state a cause of action, and substituting therefor provisions granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendants.

In this action arising out of a dispute concerning the defendants’ right to use a trade name claimed by the plaintiffs, the Supreme Court erred in denying that branch of the defendants’ cross motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted by the plaintiff Costas Mourelatos for lack of standing. The defendants submitted evidence in support of that branch of their cross motion which established that Mourelatos does not have an individual right to the use of the subject trade name and, thus, does not have standing to sue based upon the appellants’ alleged misuse of the subject trade name (see Kadish v Roosevelt Raceway Assoc., 183 AD2d 874 [1992]; Baker v Latham Sparrowbush Assoc., 129 AD2d 667, 668 [1987]).

Moreover, the Supreme Court should have granted those branches of the defendants’ cross motion which were pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against the defendants DAP Diner, Inc., doing business as East Bay Diner (Bellmore) (hereinafter DAP), and Dennis Pavlatos, for failure to state a cause of action. There is no dispute that DAP is using the subject trade name based upon an acknowledged contractual right. In addition, although Pavlatos is a shareholder in the defendant corporations, the complaint is entirely devoid of any allegations supporting the plaintiffs’ attempts to pierce the corporate veil and hold Pavlatos personally liable. The complaint did not allege a lack of corporate formalities, commingling of funds, or self-dealing on the part of either defendant corporation (see 107 Realty Corp. v National Petroleum U.S.A., 181 AD2d 817, 818 [1992]), and the plaintiffs did not specifically plead that Pavlatos exercised complete domination of either defendant corporation, or that, in any event, even if Pavlatos did exercise complete domination, such domination was used to commit a fraud or wrong against the plaintiffs (see Damianos Realty Group, LLC v Fracchia, 35 AD3d 344, 344-345 [2006]).

The Supreme Court also should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the sixth cause of action, which alleged unfair competition, for failure to state a cause of action. The complaint does not allege that the plaintiffs actually used the subject trade name, and the plaintiffs failed sufficiently to allege how the use of the trade name by the defendants was unfair to them, or how it will cause confusion or mistake (see Atlantic St. John, LLC v Yeomans, 26 AD3d 266, 267 [2006]; Eagle Comtronics v Pico Prods., 256 AD2d 1202, 1203 [1998]; Precision Concepts v Bonsanti, 172 AD2d 737, 738 [1991]).

The defendants’ remaining contentions are without merit.

Mastro, A.P.J., Balkin, Sgroi and Cohen, JJ., concur.

``` Check: - “Ordered that...“: The OCR has “Ordered that the order is modified...“. - Citation normalization for N.Y. C.P.L.R. - Correct `midpage-ps` placement. - Correct `midpage-case` attributes. For NY AD cases, the court is `N.Y. App. Div.` - Citation `183 AD2d 874 [1992]`. Start page is 874. - Citation `129 AD2d 667, 668 [1987]`. Start page is 667, pinpoint is 668. - Citation `181 AD2d 817, 818 [1992]`. Start page 817, pinpoint 818. - Citation `35 AD3d 344, 344-345 [2006]`. Start 344, pinpoint 344-345. - Citation `26 AD3d 266, 267 [2006]`. Start 266, pinpoint 267. - Citation `256 AD2d 1202, 1203 [1998]`. Start 1202, pinpoint 1203. - Citation `172 AD2d 737, 738 [1991]`. Start 737, pinpoint 738. Text correction: - “prej udice” -> “prejudice” (in the skipped section, but good to note). - “defend ants” -> “defendants” - “cross mo tion” -> “cross motion” - “as as serted” -> “as asserted” - “denied their cross mo tion” -> “denied their cross motion” - “Costas Mourelatos” is one person. - “seeAtlantic” -> “see Atlantic” Actually, the instruction says: “Rejoin ALL hyphenated line breaks... Do NOT rejoin actual compound words“. In the text, “defend-ants” (line 7 on p 913) should be “defendants“. “cross mo-tion” (p 913 middle) -> “cross motion” (Note: there isn‘t a hyphen in the OCR for some of these, just a space. OCR: `cross mo tion`. I should rejoin based on the PDF image.) Looking at image 1: - “prej-udice” (rejoin) - “defend-ants” (rejoin) - “cross mo-tion” (rejoin) - “evi-dence” (rejoin) - “stand-ing” (rejoin) Looking at image 2: - “as-serted” (rejoin) I will follow the OCR word list but clean up the spacing errors created by the PDF line breaks as instructed (“Remove PDF line breaks — combine into continuous paragraphs“). Wait, I should check the court name. The judges (Mastro, Balkin, Sgroi, Cohen) are indeed AD2. The reporter is NYS2d. Final check on metadata: shortName: `B. Merrick Rd., LLC v. Chriso Food Servs., Inc.` (Rule: first party v. first opposing party, omit et al.) docket: The docket isn‘t clearly visible in the reporter header. Sometimes it‘s something like `2011-03123`. But it‘s not here. I will omit it. One detail: `(Bellmore)` and `(Seaford)` are part of the names. Let‘s do the final HTML.