Morin v. Curtis Associates Personnel, Inc.

Decision Date28 March 1977
Citation56 A.D.2d 817,393 N.Y.S.2d 16
PartiesGinette MORIN d/b/a Bi-Lingual Agency, Plaintiff-Appellant, v. CURTIS ASSOCIATES PERSONNEL, INC., et al., Defendants-Respondents.
CourtNew York Supreme Court — Appellate Division

H. Issler, New York City, for plaintiff-appellant.

R. L. Abramson, New York City, for defendants-respondents.

Before KUPFERMAN, J.P., and SILVERMAN, LANE and NUNEZ, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered August 31, 1976, dismissing the complaint, unanimously affirmed. Respondents shall recover of appellant $60 costs and disbursements of this appeal.

Plaintiff-appellant doing business under the name 'Bi-Lingual Agency' commenced this action and also filed complaints with the Commissioner of Consumer Affairs charging defendants-respondents with violating General Business Law § 187 by use of the word 'bi-lingual' in their advertising so as to cause confusion with appellant's name. The Court below dismissed the complaint for lack of subject matter jurisdiction and we affirm for the reasons stated by that Court and upon the additional authority of Greater New York Mut. Ins. Co. v. Wehinger Service, Inc., N.Y.L.J., May 14, 1974, p. 2, col. 2, Aff'd, 47 A.D.2d 604, 365 N.Y.S.2d 994, Lv. to app'l den'd, 36 N.Y.2d 643, 368 N.Y.S.2d 1026, 329 N.E.2d 677. In that case the Court held that the prohibition of § 187 of the G.B.L. '. . . is to be enforced in this locality by the Commissioner of Consumer Affairs of New York City (General Business Law, Section 189), and the only remedy available to plaintiff with respect to the statute is the administrative procedure detailed herein.'

Furthermore, even if, as appellant contends for the first time on appeal, the complaint spelled out a cause of action for fraud and deceit in addition to the allegations of violation of G.B.L. § 187, we would dismiss such cause of action on the merits.

All concur, except KUPFERMAN, J.P., and SILVERMAN, J., who concur in the following memorandum by SILVERMAN, J.

Examination of the complaint indicates an ordinary claim of unfair competition based on a claim that plaintiff's trade name has acquired a secondary significance. Such a claim is within the subject matter jurisdiction of the Supreme Court. But it plainly appears from the complaint that in fact plaintiff's trade name has not acquired secondary significance and, therefore, the complaint must be dismissed.

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2 cases
  • Rhodes v. Herz
    • United States
    • New York Supreme Court — Appellate Division
    • 22 d2 Março d2 2011
    ...we affirm because we have previously determined that article 11 provides no private right of action 2 ( Morin v. Curtis Assoc. Personnel, 56 A.D.2d 817, 817 [1977]; Greater N.Y. Mut. Ins. Co. v. Wehinger Serv., N.Y.L.J., May 14, 1974, at 2, col. 2, [Sup Ct., N.Y. County, May 7, 1974, Frank,......
  • Acevedo v. Motor Vehicle Acc. Indemnification Corp.
    • United States
    • New York Supreme Court — Appellate Division
    • 28 d1 Março d1 1977

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