Staver Co., Inc. v. Skrobisch

• Decision Date: 14 November 1988
• Citation: Staver Co., Inc. v. Skrobisch, 533 N.Y.S.2d 967, 144 A.D.2d 449 (N.Y. App. Div. 1988)
• Parties: The STAVER COMPANY, INC., Respondent, v. Alfred SKROBISCH, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 967

533 N.Y.S.2d 967

144 A.D.2d 449

The STAVER COMPANY, INC., Respondent, v. Alfred SKROBISCH, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Nov. 14, 1988.

Jonathan C. Scott, St. James, for appellants.

Gliboff and Frankel, Islip (Irv Frankel, of counsel), for respondent.

Before KUNZEMAN, J.P., and WEINSTEIN, RUBIN and KOOPER, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring that the plaintiff is the owner of an invention known as the three position dot, the defendants appeal from an order of the Supreme Court, Suffolk County (Hand, J.), dated May 13, 1988, which denied their motion to dismiss the complaint.

ORDERED that the order is modified, by deleting the provision denying that branch of the defendant's motion which was to dismiss the plaintiff's cause of action for a permanent injunction and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration (see, 3 Weinstein-Korn-Miller, NY Civ Prac p 3001.13). We find that the court properly concluded that the plaintiff has sufficiently invoked its aid in assessing the parties' respective proprietary rights in an invention (see, CPLR 3001; Cahill v. Regan, 5 N.Y.2d 292, 184 N.Y.S.2d 348, 157 N.E.2d 505).

Despite the outstanding issues of fact regarding the parties' respective proprietary rights, the plaintiff has sufficiently alleged a claim of ownership to state a cause of action for damages for conversion (see, C.B. Western Fin. Corp. v....