| B. Merrick Rd., LLC v Chriso Food Servs., Inc. |
| 2012 NY Slip Op 03578 [95 AD3d 913] |
| May 8, 2012 |
| Appellate Division, Second Department |
| B. Merrick Rd., LLC, et al., Respondents, v Chriso FoodServices, Inc., Also Known as Cariso Food Service, Inc., Doing Business as East Bay Diner(Seaford), et al., Appellants. |
—[*1] Steven Cohn, P.C., Carle Place, N.Y. (Alan S. Zigman and Paula Schwartz of counsel), forrespondents.
In an action, inter alia, to enjoin the defendants from using the trade name and service markEast Bay Diner, the defendants appeal, as limited by their notice of appeal and brief, from somuch of an order of the Supreme Court, Nassau County (Bucaria, J.), dated March 14, 2011, asdenied their cross motion pursuant to CPLR 3211 (a) (3) and (7) to dismiss the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the defendants' cross motion which were pursuant to CPLR 3211 (a) (3) todismiss the complaint insofar as asserted by the plaintiff Costas Mourelatos for lack of standing,pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against the defendantsDAP Diner, Inc., doing business as East Bay Diner (Bellmore), and Dennis Pavlatos for failure tostate a cause of action, and pursuant to CPLR 3211 (a) (7) to dismiss the sixth cause of actioninsofar as asserted against all of the defendants for failure to state a cause of action, andsubstituting therefor provisions granting those branches of the cross motion; as so modified, theorder is affirmed insofar as appealed from, with costs to the defendants.
In this action arising out of a dispute concerning the defendants' right to use a trade nameclaimed by the plaintiffs, the Supreme Court erred in denying that branch of the defendants' crossmotion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted bythe plaintiff Costas Mourelatos for lack of standing. The defendants submitted evidence insupport of that branch of their cross motion which established that Mourelatos does not have anindividual right to the use of the subject trade name and, thus, does not have standing to suebased upon the appellants' alleged misuse of the subject trade name (see Kadish v RooseveltRaceway Assoc., 183 AD2d 874 [1992]; Baker v Latham Sparrowbush Assoc., 129AD2d 667, 668 [1987]).
Moreover, the Supreme Court should have granted those branches of the defendants' crossmotion which were pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted[*2]against the defendants DAP Diner, Inc., doing business asEast Bay Diner (Bellmore) (hereinafter DAP), and Dennis Pavlatos, for failure to state a cause ofaction. There is no dispute that DAP is using the subject trade name based upon anacknowledged contractual right. In addition, although Pavlatos is a shareholder in the defendantcorporations, the complaint is entirely devoid of any allegations supporting the plaintiffs'attempts to pierce the corporate veil and hold Pavlatos personally liable. The complaint did notallege a lack of corporate formalities, commingling of funds, or self-dealing on the part of eitherdefendant corporation (see 107 Realty Corp. v National Petroleum U.S.A., 181 AD2d817, 818 [1992]), and the plaintiffs did not specifically plead that Pavlatos exercised completedomination of either defendant corporation, or that, in any event, even if Pavlatos did exercisecomplete domination, such domination was used to commit a fraud or wrong against theplaintiffs (see Damianos Realty Group,LLC v Fracchia, 35 AD3d 344, 344-345 [2006]).
The Supreme Court also should have granted that branch of the defendants' motion whichwas pursuant to CPLR 3211 (a) (7) to dismiss the sixth cause of action, which alleged unfaircompetition, for failure to state a cause of action. The complaint does not allege that the plaintiffsactually used the subject trade name, and the plaintiffs failed sufficiently to allege how the use ofthe trade name by the defendants was unfair to them, or how it will cause confusion or mistake(see Atlantic St. John, LLC vYeomans, 26 AD3d 266, 267 [2006]; Eagle Comtronics v Pico Prods., 256AD2d 1202, 1203 [1998]; Precision Concepts v Bonsanti, 172 AD2d 737, 738 [1991]).
The defendants' remaining contentions are without merit. Mastro, A.P.J., Balkin, Sgroi andCohen, JJ., concur.