101 A.D.2d 719 | N.Y. App. Div. | 1984
— Order, Supreme Court, New York County (Grossman, J.), entered June 30, 1983, granting plaintiff’s motion to amend the complaint and denying defendant’s motion for summary judgment, unanimously affirmed, with costs and disbursements. 11 Lorenzo De Medici, who purports to be a direct descendant of the famous De Medicis of Florence, designs and manufactures haute couture merchandise which is sold at European and American boutiques. Alleging a common-law property right to the use and protection of his name and a violation of sections 50 and 51 of the Civil Rights Law, he commenced this action on October 7, 1982 for the alleged misappropriation of his name by defendant, a seller of costume jewelry. A permanent injunction and damages, compensatory and punitive, were sought. Defendant, incorporated on July 21, 1977, has been using the “Lorenzo De Medici” name since at least August of that year. After interposition of its answer, which, in addition to a general denial, asserted nine affirmative defenses including the Statute of Limitations, defendant moved for summary judgment dismissing the complaint on the ground that recovery under the common-law property right theory and statutory remedy was barred by a three-year and one-year Statute of Limitations, respectively. Plaintiff cross-moved for leave to amend the complaint to allege two additional causes of action for unfair competition, one under New York’s antidilution statute, section 368-d of the General Business Law, and the other under subdivision (a) of section 43 óf the Lanham Act (60 US Stat 427, 441; US Code, tit 15, § 1125, subd [a]), both of which were predicated on the same purported property rights in plaintiff’s trade name as were alleged in the original complaint. Special Term found that both of plaintiff’s original claims were time barred since more than five years had elapsed from the time defendant began to use plaintiff’s name. Nevertheless, it denied defendant’s motion as moot and granted plaintiff’s cross motion to amend, finding that the