Discover Bank v Kyte

[*1] Discover Bank v Kyte 2012 NY Slip Op 50411(U) Decided on March 5, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 5, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-760 K C.

Discover Bank, Respondent,

against

Charles Kyte, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 24, 2011. The order denied defendant's motion, in effect, to open a default.

ORDERED that the order is affirmed, without costs.

In this action to recover for breach of a credit card agreement and upon an account stated, defendant defaulted in appearing for trial and, thereafter, moved, in effect, to open his default. The Civil Court denied defendant's motion, finding that defendant had failed to demonstrate any basis to open the default.

In our view, the Civil Court did not improvidently exercise its discretion in denying defendant's motion since defendant failed to sufficiently demonstrate a reasonable excuse for his default and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. [*2]
Decision Date: March 05, 2012