Opinion
January 17, 1995
Appeal from the Supreme Court, Suffolk County (Henry, J.).
Ordered that the judgment is reversed, on the law, with costs, the order dated July 26, 1994, is vacated, and, upon searching the record, the defendant is granted summary judgment dismissing the complaint.
The parties are engaged in the business of providing health care services to Medicaid patients who are restricted to their homes, and obtain practically all of their patient referrals from the Nassau County Department of Social Services. In 1987 the plaintiff filed a Certificate of Assumed Name with the New York State Department of Health, indicating its intent to do business under the name "Extended Care". However, both its letterhead and its advertisements identify the plaintiff as "Extended Care Health Services". The defendant has conducted its business under the name "Extended Family Care". By this action the plaintiff seeks to enjoin the defendant's continued use of the name "Extended Family Care", alleging that such conduct constitutes unfair competition and has resulted in injury to its business.
In order to sustain a common-law cause of action to recover damages for unfair competition through the use of a trade name, the plaintiff must establish that the defendant's acts "constituted an unfair appropriation or exploitation of any special quality attached to plaintiff's name" (Buffalo Packaging Corp. v. Buff-Pac, Inc., 155 A.D.2d 877, 878). The plaintiff has failed to meet this burden, as the words "extended" and "care" are generic terms in the common domain, which lack any special qualities and merely describe the services provided by both parties (see, Sample, Inc. v. Porrath, 41 A.D.2d 118, 122, affd 33 N.Y.2d 961). In any event, there is no evidence in the record to support the conclusion that the plaintiff ever actually conducted business under the name "Extended Care". Thus, upon searching the record, the defendant is entitled to summary judgment dismissing the complaint. Miller, J.P., Lawrence, Ritter and Santucci, JJ., concur.