Sports Legends, Inc. v. Carberry

Order and judgment (one paper), Supreme Court, New York County (Debra A. James, J.), entered November 4, 2005, dismissing this action, on defendant’s motion to renew, for failure to prosecute, unanimously affirmed, without costs.

Defendant did not waive his right to move for dismissal under CPLR 3215 (c) (cf. Myers v Slutsky, 139 AD2d 709 [1988]) by appearing, even informally, on the merits (cf. USF&G v Maggiore, 299 AD2d 341, 342-343 [2002]; Ocuto Blacktop & Paving Co. v Trataros Constr., 277 AD2d 919 [2000]). Therefore, it was plaintiffs burden to show a lack of intent to abandon the action…