O'Henry's Film Works, Inc. v. Nabisco, Inc.

112 A.D.2d 825, 492 N.Y.S.2d 744, 1985 N.Y. App. Div. LEXIS 52076

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 8, 1985
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Wright, J.), entered July 9, 1984, granting defendant’s motion to dismiss the complaint pursuant to CPLR 3211, reversed on the law and the motion denied, with costs and disbursements. The complaint seeks injunctive relief under General Business Law § 368-d. Special Term held that "[¡judicial economy * * * demands dismissal of plaintiff’s pleading” because it found that plaintiff would not ultimately succeed in obtaining an injunction. The prospect of a pleading’s success is not the criterion by which it should be adjudged under CPLR 3211 (see, People v Penn Cent. Co., 33 AD2d 860). A motion under that section assumes the truth of the allegations of the complaint, with plaintiff given the benefit of every favorable inference (see, Denihan Enters, v O’Dwyer, 302 NY 451, 458), and the complaint is legally sufficient if it states a cognizable cause of action (see, Guggenheimer v Ginzburg, 43 NY2d 268). So viewed, the complaint states a cause of action. It alleges that plaintiff created a distinctive musical signature for its commercial advertising, that it never intended abandoning it, that defendant thereafter commenced using plaintiff’s musical signature, with adverse effects on its value to plaintiff and the dilution of its distinctive quality. Concur — Murphy, P. J., Ross, Lynch and Milonas, JJ.