Opinion
February 19, 1991
Appeal from the Supreme Court, Nassau County (Roberto, J.).
Ordered that the order is affirmed, with costs, and the stay previously granted by order of this court dated October 17, 1989, is vacated forthwith.
In order to prevail on the merits, the plaintiffs would have to show, inter alia, that the defendants' continued use of the name "Paolucci" threatens to "produce confusion in the public mind" (David B. Findlay, Inc. v Findlay, 18 N.Y.2d 12, 19, cert denied 385 U.S. 930; see also, Brasscrafters, Inc. v Ehrlich, 109 A.D.2d 724). The affidavits submitted by the plaintiffs in support of their application for a preliminary injunction established that some confusion existed in the mind of one person; this, however, does not establish that there was any significant confusion among members of the public at large. Given the inadequacy of the plaintiffs' showing with respect to their contention that they would ultimately succeed on the merits, we conclude that the Supreme Court did not improvidently exercise its discretion in denying their motion for a preliminary injunction. Bracken, J.P., Brown, O'Brien and Ritter, JJ., concur.