R.G. Egan Equipment, Inc. v. Polymag Tek, Inc. , 735 N.Y.S.2d 698 ( 2001 )

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs commenced this action alleging causes of action for trade name infringement and unfair competition based on defendants’ use of the name “Polymag.” Supreme Court erred upon renewal in granting defendants’ motion for summary judgment dismissing the fourth cause of action, the only remaining cause of action in the complaint, and for summary judgment on the fifth counterclaim, declaring that plaintiffs’ use of the name “Polymag” would constitute trade name infringement and permanently enjoining and restraining plaintiffs from using that name. Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiffs raised an issue of fact whether the Estate of Robert Donadío (Estate) abandoned the trade name (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). In opposition to the motion, plaintiffs submitted evidence that Eileen Donadío, the executrix of the Estate, had attempted to sell the trade name to defendants for $20,000, which is evidence that the Estate had not abandoned the trade name (see, Defiance Button Mach. Co. v C & C Metal Prods. Corp., 759 F2d 1053, 1059-1060, cert denied 474 US 844). Consequently, we modify the order by denying defendants’ motion in its entirety, reinstating the fourth cause of action and vacating the fourth and fifth ordering paragraphs. In light of our determination, we do not address plaintiffs’ remaining contentions. (Appeal from Order of Supreme Court, Monroe County, Stander, J. — Summary Judgment.) Present — Green, J. P., Kehoe, Burns, Gorski and Lawton, JJ.