Wyndham Co. v. Wyndham Hotel Co.

—Order, Supreme Court, New York County (Carmen Beauchamp Ciparick, J.), entered February 18, 1993, which, inter alia, denied that branch of the Wyndham defendants’ motion as sought summary judgment and granted that branch as sought a severance of the first and second causes of action, unanimously modified, on the law, the facts and in the exercise of discretion, to deny the severance, and otherwise affirmed, without costs.

We agree with the IAS Court that the lease, read as a whole, supports plaintiff hotel lessee’s contention that it was to have exclusive use of the hotel name "Wyndham” during the life of the lease (see, Shubert v Columbia Pictures Corp., 189 Misc 734, affd 274 App Div 751), and that plaintiffs therefore have standing to assert a common-law trademark infringement of that name. We disagree, however, that the two causes of action set forth in the complaint are so unrelated as to warrant a severance.

The first cause of action is directed at plaintiffs’ competitors who, since on or about 1982, commenced operation of a chain of hotels throughout the United States and Caribbean under *160the "Wyndham” name, and seek to amend their application on file with the Federal Trademark office for exclusive use of the name and mark "Wyndham” to include New York, except for a few square-block area in the immediate vicinity of plaintiffs’ hotel. Plaintiffs seek to preliminarily enjoin their competitors from operating a hotel under the name "Wyndham” within a radius of 50 miles in the New York City Metropolitan area. In the second cause of action, plaintiffs seek a declaration of their purported superior right to the name, "Wyndham”, as against their landlord, during the term of the lease. The interests of justice and judicial economy will be best served by a joint trial of these causes of action, both of which pertain to which party will ultimately have the right to use and/or license the name "Wyndham” in the New York area. Concur — Murphy, P. J., Sullivan, Carro, Wallach and Tom, JJ. [See, 157 Misc 2d 307.]