Platzman v. American Totalisator Co., Inc.

• Decision Date: 12 May 1977
• Citation: 57 A.D.2d 753,394 N.Y.S.2d 412
• Parties: Michael M. PLATZMAN, Plaintiff-Respondent, v. AMERICAN TOTALISATOR COMPANY, INC., et al., Defendants-Appellants, The City of New York et al.
• Court: New York Supreme Court — Appellate Division

Page 412

394 N.Y.S.2d 412

57 A.D.2d 753

Michael M. PLATZMAN, Plaintiff-Respondent, v. AMERICAN TOTALISATOR COMPANY, INC., et al., Defendants-Appellants,

The City of New York et al.

Supreme Court, Appellate Division, First Department.

May 12, 1977.

M. M. Platzman, New York City, for plaintiff-respondent.

H. James, New York City, for defendants-appellants.

Before MURPHY, P. J., and SILVERMAN, CAPOZZOLI, LANE and MARKEWICH, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered October 4, 1976 denying defendant-appellant, American Totalisator Company, Inc.'s motion for summary judgment dismissi the complaint herein, affirmed, with $60 costs and disbursements of this appeal to respondent.

We do not believe that, on this record, we can fairly conclude that there are no triable issues of fact and thereby justify the granting of summary judgment to defendant, American Totalisator Company.

It appears to us that whatever information was imparted to the defendant by the plaintiff was given in confidence and could not be appropriated without the consent of the plaintiff. Whether this relationship of confidence existed between the defendant and the plaintiff, individually, or with Taller & Cooper, does not in any way excuse the defendant from the acts charged against it. Either way the defendant committed a wrong if the charges against it are true.

The claim of the defendant that the system disclosed to it by plaintiff was insufficiently concrete and complete is controverted by the plaintiff who urges the contrary. He strongly argues that the system proposed was a complete one, not just an idea. This presents a question of fact.

Other fact issues present in this record include whether the information relating to the system design came from a source other than the plaintiff himself; whether there was any communication by defendant to others of the explanation given to it by plaintiff as to the design and workings of the system and, particularly, whether the defendant communicated to the City of New York the details of the system designed as explained by the plaintiff. We believe these questions and others in the record to be sufficient to defeat summary judgment. It should also be noted that much of the information which is necessary for a proper determination of the merits of the action is within the exclusive knowledge of the defendant. This is an additional reason justifying the denial of summary judgment in advance of pre-trial proceedings in this action. One of the matters which can then properly be inquired into would be a comparison of the system presented and the plaintiff's system as given to the defendant, American Totalisator Company.

Solely for the purposes of this motion, American Totalisator Company concedes that the system provided by it to OTB is the same as the one claimed to have been disclosed by plaintiff. American Totalisator Company and other defendants herein are also defendants in a patent infringement suit presently pending in the U.S. District Court for the Southern District of New York, in which litigation the plaintiff herein was not permitted to intervene, although he tried. In that suit, and here, the defendants have pleaded that their systems are not the same as that disclosed by plaintiff and are also different from the one patented. Since the concession now made by American Totalisator Company is made only for the purposes of this motion, the defendants would be free to pursue their contention in the patent...