SQUARED SOFTWARE LLC v. BERNETTE KNITWARE CORP (2008)

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered July 26, 2007, dismissing the complaint pursuant to an order, same court and Justice, entered June 18, 2007, which, in an action for conversion of a software program, denied plaintiff's motion for partial summary judgment on the issue of liability, granted defendants' cross motion for summary judgment dismissing the complaint, and vacated a prior order preliminarily restraining defendants from publishing the subject program to third parties, unanimously affirmed, with costs.   Appeal from the aforesaid order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff does not have a cause of action for conversion where it alleges that the program was obtained by defendant licensee pursuant to a valid contract and does not claim that it ever demanded the program's return (see Agawam Trading Corp. v. Malbin Co., 37 A.D.2d 946, 325 N.Y.S.2d 757 [1971] ).   The disclosure that plaintiff seeks cannot possibly cure this deficiency in proof.   The preliminary injunction was properly vacated upon dismissal of the complaint (see Jou-Jou Designs v. International Ladies' Garment Workers' Union, Local 23-25, 94 A.D.2d 395, 400, 465 N.Y.S.2d 163 [1983], affd. 60 N.Y.2d 1011, 471 N.Y.S.2d 568, 459 N.E.2d 861 [1983] ).