107 A.D.2d 734 | N.Y. App. Div. | 1985
— In an action, inter alia, to enjoin defendants from using the trade name and service mark Delta Transmissions, plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 13,1983, as denied their cross motion to dismiss defendants’ counterclaims and failed to grant their application for an order directing defendants to pay them costs. Defendants cross-appeal from so much of the same order as denied their motion for a preliminary injunction.
Order affirmed, insofar as appealed from, without costs or disbursements.
In view of the conflicting evidence in the record, it is impossible to ascertain which position the balance of equities favors. Moreover, defendants have failed to demonstrate the likelihood of ultimate success on the merits. Accordingly, their application for preliminary injunctive relief was properly denied (see Niagara Recycling v Town of Niagara, 83 AD2d 316; Gambar Enterprises v Kelly Servs., 69 AD2d 297).
It is clear from the parties’ allegations that any rights which the various additional Delta Transmissions defendants may claim are derived solely from the rights which plaintiffs themselves claim. Accordingly, the counterclaims were properly asserted pursuant to CPLR 3019 (subd [a]) and the branch of plaintiffs’ cross motion which sought their dismissal was properly denied.
We have considered the parties’ remaining contentions and find them to be without merit. Titone, J. P., Mangano, Weinstein and Brown, JJ., concur.
