Judgment granting an injunction pursuant to section 964 of the Penal Law, restraining and enjoining respondent-appellant from using the name "Athenian" in connection with his retail liquor store, unanimously reversed, on the law and the facts, without costs or disbursements, and the petition dismissed, without prejudice to a plenary suit in equity. In order for petitioners to succeed in a summary proceeding of this kind, there must be clear, undisputed proof that respondent-appellant intended to trade upon and exploit petitioners' name. The absence of a factual issue must be of such a kind and character as would authorize summary judgment in an appropriate case. ( Association of Contr. Plumbers v. Contracting Plumbers Assn., 302 N.Y. 495, 502; Matter of Ryan Son v. Lancaster Homes, 19 A.D.2d 14; Matter of Industrial Plants Corp. v. Industrial Liquidating Co., 286 App. Div. 568, 571.) In the instant case, the intent to deceive and the likelihood of deceiving the public are controverted.
Concur — Botein, P.J., Stevens, Steuer, McNally and McGivern, JJ.