Westbury Medical Building, Inc. v. Symons

23 Misc. 2d 1087, 204 N.Y.S.2d 367, 126 U.S.P.Q. (BNA) 214, 1960 N.Y. Misc. LEXIS 2741

• Court: New York Supreme Court
• Decided: July 1, 1960
• Status: Published

Opinion

Frank A. Gulotta, J.

This is a proceeding under section 964 of the Penal Law to summarily enjoin the respondent from using the name “ Westbury Medical Center ” in connection with a medical practice which he conducts at Post Avenue, Westbury. It is of the essence of this proceeding that there be shown on the part of respondent, an intention to deceive so that he is in effect attempting to palm himself or his business off on the public as something which he is not. (Association of Contracting Plumbers v. Contracting Plumbers Assn., 302 N. Y. 495.)

The section is contained in an article dealing with frauds and cheats which is indicative of its purpose.

There is an absence of such a showing here or of facts from which such an inference must be drawn, although such an inference might be permissible.

Since the respondent was the first to file a trade name certificate for the name in controversy, there is even an issue of priority. Where there is a genuine issue of fact to be tried, the parties should be relegated to a plenary suit in the Equity Part of the court. (Matter of Fischer Spring Co. v. Fischer, 3 A D 2d 475.) That is the proper forum in which to try issues of good faith, priority, etc. (Neva-Wet Corp. v. Never Wet Processing Corp., 277 N. Y. 163.)

The application is denied without prejudice to the institution of an action. Short-form order signed.