Opinion
November 14, 1988
Appeal from the Supreme Court, Suffolk County (Hand, J.).
Ordered that the order is modified, by deleting the provision denying that branch of the defendant's motion which was to dismiss the plaintiff's cause of action for a permanent injunction and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration (see, 3 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 3001.13). We find that the court properly concluded that the plaintiff has sufficiently invoked its aid in assessing the parties' respective proprietary rights in an invention (see, CPLR 3001; Cahill v. Regan, 5 N.Y.2d 292).
Despite the outstanding issues of fact regarding the parties' respective proprietary rights, the plaintiff has sufficiently alleged a claim of ownership to state a cause of action for damages for conversion (see, C.B.W. Fin. Corp. v. Computer Consoles, 122 A.D.2d 10, 12; Gold Medal Prods. v. Interstate Computer Servs., 80 A.D.2d 600). However, we find that the plaintiff's allegations of lost profits resulting from the assignment by the defendant Alfred Skrobisch of his rights to the three position dot are insufficient as a matter of law to set forth a cause of action for a permanent injunction. The plaintiff may adequately redress any financial loss, if declared to be the owner of the subject invention, by pursuing an action for damages (see, Kane v. Walsh, 295 N.Y. 198, 205-206; Thomas v. Musical Mut. Protective Union, 121 N.Y. 45). Kunzeman, J.P., Weinstein, Rubin and Kooper, JJ., concur.