Radiant Energy Corp. v. Roberts-Gordon, Inc.

Memorandum: Supreme Court properly granted plaintiffs’ motion for a preliminary injunction restraining defendant from interfering with plaintiffs’ rights as owners of a patent for an infrared radiation apparatus for de-icing aircraft. Plaintiffs sufficiently established a likelihood of success on the merits, irreparable harm if injunctive relief is not granted and a balancing of the equities in their favor (see, Aetna Ins. Co. v Capasso, 75 NY2d 860 , 862; Grant Co. v Srogi, 52 NY2d 496 , 517; Town of Porter v Chem-Trol Pollution Servs., 60 AD2d 987 , 988).

At this stage, we reject defendant’s contention that plaintiffs cannot succeed on the merits. Defendant contends that, as officers of defendant corporation, plaintiffs Chew and Seel owed a fiduciary duty not to divert a corporate opportunity from defendant and an obligation to assign all rights to inventions and patents to the corporation (see, Grip Nut Co. v Sharp, 150 F2d 192 , cert denied 326 US 742 ; Kennedy v Wright, 676 F Supp 888 , affd 867 F2d 616 ; Great Lakes Press Corp. v Froom, 695 F Supp 1440 ). New York has not adopted, the rule announced in those cases (see, Cahill v Regan, 5 NY2d 292 ), and, in any event, defendant failed to show that Chew or Seel had sufficient control over the management of the corporation or exercised the power of a president or chief executive officer to come within that rule. (Appeal from Order of Supreme Court, Erie County, Howe, J. — Preliminary Injunction.) Present — Denman, P. J., Lawton, Wesley, Doerr and Balio, JJ.