KG2, LLC v. Weller

• Decision Date: 26 April 2013
• Parties: KG2, LLC, doing business as Aurora Sales & Service, Plaintiff–Respondent, v. Bruce WELLER, doing business as Aurora Truck Supply Company, Defendant–Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1414
966 N.Y.S.2d 298
2013 N.Y. Slip Op. 02916

KG2, LLC, doing business as Aurora Sales & Service, Plaintiff–Respondent,
v.
Bruce WELLER, doing business as Aurora Truck Supply Company, Defendant–Appellant, et al., Defendant.

Supreme Court, Appellate Division, Fourth Department, New York.

April 26, 2013.

[966 N.Y.S.2d 299]

Eugene Vincent Burke, Williamsville, Magavern Magavern Grimm LLP, Buffalo (Sharon Stern Gerstman of Counsel), for Defendant–Appellant.

Lewandowski & Associates, West Seneca (Ashley J. Litwin of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ.

MEMORANDUM:

[105 A.D.3d 1414]Plaintiff purchased its business from a seller that four years earlier had purchased the business from Bruce Weller, sued herein as Bruce Weller, doing business as Aurora Truck Supply Company (defendant). For approximately six years after plaintiff's purchase, Weller continued to lease to plaintiff the real property where the business was located. At the termination of the lease, plaintiff relocated approximately two miles away, and Weller resumed a business at the property with a similar name and trade. Plaintiff alleged in the complaint that defendant and another unknown defendant engaged in unfair competition based on trademark or trade name infringement and misappropriation of goodwill.

We agree with defendant that Supreme Court erred in granting that part of plaintiff's motion for partial summary judgment [105 A.D.3d 1415]on liability on the first cause of action, for unfair competition, and in scheduling a trial on damages. “[T]o prevail in an unfair competition case, the plaintiff may prove either: (1) that the defendant's activities have caused confusion with, or have been mistaken for, the plaintiff's activities in the mind of the public, or are likely to cause such confusion or mistake; or (2) that the defendant has acted unfairly in some manner” (104 N.Y. Jur. 2d, Trade Regulation § 196; see generally Allied Maintenance Corp. v. Allied Mech. Trades, 42 N.Y.2d 538, 543, 399 N.Y.S.2d 628, 369 N.E.2d 1162). We conclude that the affidavit of plaintiff's owner in support of plaintiff's motion for summary judgment was merely conclusory and failed to establish the elements of the cause of action for unfair competition based on trademark or trade name infringement or misappropriation of goodwill ( see generally Cobrin v. County of Monroe, 212 A.D.2d 1011, 1012, 623 N.Y.S.2d 680). Indeed, the...