ADMIRAL INS. CO. v. MARRIOTT INTL., INC.

2009 NY Slip Op 08466

ADMIRAL INSURANCE COMPANY, ET AL., Plaintiffs-Appellants,
v.
MARRIOTT INTERNATIONAL, INC., ET AL., Defendants-Respondents, EAGLE ONE ROOFING CONTRACTORS, INC., ET AL., Defendants.

1493N, M-4693

Appellate Division of the Supreme Court of New York, First Department.

Decided November 17, 2009.

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.

Before: Gonzalez, P.J., Saxe, McGuire, Acosta, Roman, JJ.

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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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