McDermott v. Edwards , 484 N.Y.S.2d 208 ( 1984 )

Appeal from an order of the Supreme Court at Special Term (Graves, J.), entered September 4, 1984 in Schenectady County, which denied plaintiffs’ motion for a preliminary injunction.

The sole issue raised by this appeal is whether Special Term erred in finding that plaintiffs did not establish a clear prior right to the use of their trade and corporate names such that defendants should be preliminarily enjoined from using a trade and corporate name remarkably similar to that of plaintiffs. While plaintiffs claim that they filed a certificate of doing business in the Albany County Clerk’s office on April 10, 1984, under the name of Empire State Brick Facing and Durastone, Ltd., thereby establishing such prior right, defendants claim that the certificate was filed on behalf of a partnership among all the parties to this action.

Clearly, such disparate factual allegations do not satisfy the requisites for the issuance of the extraordinary remedy of a preliminary injunction which this court set forth in Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp. (70 AD2d 1021, 1022, app dsmd 48 NY2d 654). Here, plaintiffs have failed to demonstrate a likelihood of success on the merits, irreparable injury and a clear showing that the equities favor their cause of action.

Finally, we note that subsequent to Special Term’s order denying the motion for a preliminary injunction, plaintiffs moved in this court for like relief pending appeal. The motion was denied by order entered October 10, 1984.

Order affirmed, with costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.