Fox v. Wiener Laces, Inc.

74 A.D.2d 549, 425 N.Y.S.2d 114, 1980 N.Y. App. Div. LEXIS 10164

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 26, 1980
• Status: Published

Opinions

Order, Supreme Court, New York County, entered September 5, 1979, which granted the plaintiffs motion for a preliminary injunction, unanimously reversed, on the law, without costs, and the motion for a preliminary injunction is denied. Plaintiff seeks to enjoin defendant’s use of certain embroidery designs created by her, contending that defendant has breached a contract between them. She does not seek, on this record, to assert a claim against defendant based upon infringement of any right of property secured to her by copyright. In essence and analogous to the rationale expressed by Justice Cardozo in Underhill v Schenck (238 NY 7), plaintiff asserts that the origin of her claim is not in a right of property, but in a contract or relation. Accordingly, plaintiff may maintain her claim in State court and is not restricted to Federal jurisdiction, even regarding injunctive relief (cf. Copyright Act of 1976, US Code, tit 17, § 101 et seq., esp § 301, subd [a]). However, scrutiny of the record, apart from the Federal pre-emption issue, discloses that plaintiff has failed to demonstrate a clear legal right to an injunction. In the absence of a showing of irreparable injury, including a showing that money damages would not be an adequate remedy, and a reasonable probability of success ultimately in the action, an injunction pendente lite may not be issued on plaintiffs behalf. Of course, the denial of injunctive relief on this record is without prejudice to plaintiffs seeking to vindicate any claim she may have for copyright infringement in the Federal court or to vindicating her present claim asserted in this State action. Concur—Sullivan, Lupiano, Silverman and Bloom, JJ.