SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

338 

CA 12-01225 

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ. 

 

KG2, LLC, DOING BUSINESS AS AURORA SALES & 

SERVICE, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

BRUCE WELLER, DOING BUSINESS AS AURORA 

TRUCK SUPPLY COMPANY, DEFENDANT-APPELLANT,

ET AL., DEFENDANT.

 

EUGENE VINCENT BURKE, WILLIAMSVILLE, MAGAVERN MAGAVERN GRIMM LLP,

BUFFALO (SHARON STERN GERSTMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.

LEWANDOWSKI & ASSOCIATES, WEST SENECA (ASHLEY J. LITWIN OF COUNSEL),

FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (John A.

Michalek, J.), entered December 28, 2011. The order, insofar as

appealed from, granted in part plaintiff’s motion for summary

judgment. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs and the motion is denied

in its entirety. 

Memorandum: Plaintiff purchased its business from a seller that

four years earlier had purchased the business from Bruce Weller, sued

herein as Bruce Weller, doing business as Aurora Truck Supply Company

(defendant). For approximately six years after plaintiff’s purchase,

Weller continued to lease to plaintiff the real property where the

business was located. At the termination of the lease, plaintiff

relocated approximately two miles away, and Weller resumed a business

at the property with a similar name and trade. Plaintiff alleged in

the complaint that defendant and another unknown defendant engaged in

unfair competition based on trademark or trade name infringement and

misappropriation of goodwill.

We agree with defendant that Supreme Court erred in granting that

part of plaintiff’s motion for partial summary judgment on liability

on the first cause of action, for unfair competition, and in

scheduling a trial on damages. “[T]o prevail in an unfair competition

case, the plaintiff may prove either: (1) that the defendant’s

activities have caused confusion with, or have been mistaken for, the

plaintiff’s activities in the mind of the public, or are likely to

cause such confusion or mistake; or (2) that the defendant has acted
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CA 12-01225 

unfairly in some manner” (104 NY Jur 2d, Trade Regulation § 196; see

generally Allied Maintenance Corp. v Allied Mech. Trades, 42 NY2d 538,

543). We conclude that the affidavit of plaintiff’s owner in support

of plaintiff’s motion for summary judgment was merely conclusory and

failed to establish the elements of the cause of action for unfair

competition based on trademark or trade name infringement or

misappropriation of goodwill (see generally Cobrin v County of Monroe,

212 AD2d 1011, 1012). Indeed, the affidavit of plaintiff’s owner set

forth in a conclusory manner only that defendant’s use of a similar

trade name caused substantial confusion and that defendant acted in

bad faith. We note that the court concluded that the affidavit of

plaintiff’s owner alone, without resort to the attached exhibits,

established liability on the cause of action for unfair competition by

demonstrating that defendant caused “confusion among numerous

customers.” However, the affidavit alone does not support the court’s

statement that plaintiff’s owner received complaints from dissatisfied

customers as a result of poor workmanship provided by defendant, and

that plaintiff’s owner established “through his affidavit” that there

have been approximately 34 different incidents in which customers

expressed confusion between plaintiff’s business and defendant’s

business. Rather, the exhibits attached to the affidavit as purported

business records provide the information supporting that statement.

We agree with defendant that plaintiff “failed to establish a

proper foundation for the admission of [those exhibits] under the

business record exception to the hearsay rule” (Palisades Collection,

LLC v Kedik, 67 AD3d 1329, 1330). For a document to be admissible as

a business record, it must be established that “it was made in the

regular course of any business and that it was the regular course of

such business to make it, at the time of the act, transaction,

occurrence or event, or within a reasonable time thereafter”

(CPLR 4518 [a]), and plaintiff’s owner did not aver in his affidavit

that the documents were records made in the regular course of

business. Also, the assertion of plaintiff’s counsel that the

exhibits were maintained in the regular course of business is

insufficient both because the assertion is made for the first time on

appeal and because plaintiff’s counsel did not have “personal

knowledge of the [record] maker’s business practices and procedures”

to establish the requisite foundation (West Val. Fire Dist. No. 1 v

Village of Springville, 294 AD2d 949, 950). Finally, plaintiff in

support of its motion submitted only one affidavit of a customer, who

asserted that he mistakenly called Aurora Truck Supply, i.e.,

defendant’s business, and a representative there claimed to be

plaintiff’s owner. We conclude that the circumstances of the

confusion of that sole customer are insufficient to establish a claim

of unfair competition as a matter of law (see Camelot Assoc. Corp. v

Camelot Design & Dev., 298 AD2d 799, 800).

Finally, we conclude with respect to the claim for

misappropriation of good will as a basis for the unfair competition

cause of action that plaintiff failed to make the requisite prima

facie showing of both misappropriation of goodwill and bad faith (see

Abe’s Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690, 692-693).
-3- 338 

CA 12-01225 

In light of our determination that plaintiff failed to meet its

burden on the motion, we need not address defendant’s remaining

contentions.

Entered: April 26, 2013 Frances E. Cafarell

Clerk of the Court