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Napoleon Contin v. Biana Franco Cab Corp

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


February 14, 2011

NAPOLEON CONTIN,
APPELLANT,
v.
BIANA FRANCO CAB CORP.,
RESPONDENT, -AND- ROGER
FRIMPONG AND KOFI APHEN,
DEFENDANTS.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered January 21, 2010. The order granted a motion by defendant Biana Franco Cab Corp. to open its default in appearing.

Contin v Biana Franco Cab Corp.

Decided on February 14, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 14, 2011

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

ORDERED that the order is reversed, without costs, and the motion by defendant Biana Franco Cab Corp. to open its default in appearing is denied.

In order to open its default in appearing, Biana Franco Cab Corp. (defendant) was required to demonstrate, among other things, that it has a meritorious defense to the action (see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Franklin v 172 Audubon Corp., 32 AD3d 454 [2006]). Since the conclusory affidavit of its secretary had no evidentiary support, defendant failed to make the required showing (see Reilly-Whiteman, Inc. v Cherry Hill Textiles, 191 AD2d 486, 487 [1993]). Accordingly, the order granting defendant's motion to open its default is reversed and the motion is denied.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: February 14, 2011

20110214

© 1992-2011 VersusLaw Inc.



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