134 A.D.2d 721 | N.Y. App. Div. | 1987
Appeal from an order of the Supreme Court (Hughes, J.), entered March 13, 1987 in Albany County, which denied plaintiffs motion for partial summary judgment.
Donald Bronstein is president of defendant, Capitol Refrigeration Company, Inc., which was incorporated in 1947. In
Plaintiff brought this action in equity, alleging unfair competition and seeking monetary damages, together with a permanent injunction enjoining defendant from conducting business as "Capitol Heating & Cooling Co.” or under any similar derivation. The thrust of plaintiff’s complaint is that defendant’s adoption of a name similar to plaintiff’s, coupled with its nearby location, is likely to and has confused the public and constitutes unfair competition. Plaintiff’s motion for partial summary judgment, seeking injunctive relief, was denied, prompting this appeal. We affirm.
The basic issue in a cause of action for unfair competition is "whether the acts complained of are fair or unfair” (Cigogne, Inc. v Luxury Trading Corp., 13 AD2d 928, 929). Resolution of that issue requires a complex factual analysis of a variety of factors including the character and circumstances of the business (International News Serv. v Associated Press, 248 US 215, 236), and the nature of the alleged unfair practices (Sample, Inc. v Porrath, 41 AD2d 118, 121, affd 33 NY2d 961).
The record in the instant case does not demonstrate unfair practices so clearly that summary judgment lies. More specifically, a cause of action in unfair competition requires the plaintiff to prove some element of bad faith (Saratoga Vichy Spring Co. v Lehman, 625 F2d 1037, 1044). Defendant’s bad faith is not made out by this record.
Plaintiff contends that seven misdirected service orders and misdelivered mail on the part of suppliers and customers of
There being triable material fact issues, summary judgment was properly denied.
Order affirmed, with costs. Mahoney, P. J., Casey, Yesawich, Jr., and Levine, JJ., concur.