Admiral Ins. Co. v Marriott Intl., Inc.

Admiral Ins. Co. v Marriott Intl., Inc. 2009 NY Slip Op 08466 [67 AD3d 526] November 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Admiral Insurance Company et al., Appellants,
v
Marriott International, Inc., et al., Respondents, et al., Defendants.

—[*1] Litchfield Cavo LLP, New York (Joseph E. Boury of counsel), for appellant.

Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for respondents.

Order, Supreme Court, New York County (Louis B. York, J.), entered August 18, 2008, which, insofar as appealed from, denied plaintiffs' motion for a default judgment against defendants-respondents, unanimously affirmed, with costs.

With respect to defendants Marriott International, Inc. and Execustay Corporation, both purportedly served pursuant to Business Corporation Law § 306, plaintiffs' motion for a default judgment was properly denied for lack of proof of compliance with CPLR 3215 (g) (4) (i) (see Rafa Enters. v Pigand Mgt. Corp., 184 AD2d 329 [1st Dept 1992]; accord Ocuto Blacktop & Paving Co. v Trataros Constr., 277 AD2d 919 [4th Dept 2000]; Schilling v Maren Enters., 302 AD2d 375, 376 [2d Dept 2003]). With respect to defendant Marriott Execustay, purportedly served pursuant to Business Corporation Law § 307, plaintiff's motion for a default judgment was properly denied for lack of evidence rebutting defendants' assertion that Marriott Execustay is not a legal entity capable of being sued but a trademark registered to Marriott International, Inc. (cf. Stewart v Volkswagen of Am., 81 NY2d 203, 207 [1993] [once questioned, burden of proving jurisdiction is on plaintiff]). We have considered plaintiffs' other arguments and find them unavailing.

Motion seeking to consolidate appeals denied. Concur—Gonzalez, P.J., Saxe, McGuire, Acosta and Roman, JJ. [Prior Case History: 20 Misc 3d 1136(A), 2008 NY Slip Op 51765(U).]