Sports Legends, Inc. v Carberry

Sports Legends, Inc. v Carberry 2007 NY Slip Op 02657 [38 AD3d 470] March 29, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Sports Legends, Inc., Appellant,
v
Paul B. Carberry, Respondent.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Leffler Marcus & McCaffrey LLC, New York (Seth L. Marcus of counsel), for respondent.

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 plaintiff's burden to show a lack of intent to abandon the action (see Dooley v 603 W. 139th St. Realty Corp., 11 AD3d 403 [2004]), and to demonstrate both a reasonable excuse for the period of nonprosecution and merit to the action (see Thanh Truong v All Pro Air Delivery, 278 AD2d 45 [2000]). Plaintiff made no attempt to address that burden before the motion court. Were we to consider its attempts to do so for the first time on appeal, we would find that it had shown neither excusable law office failure (cf. Bazac v Odelia Enters. Corp., 272 AD2d 226 [2000]) nor a meritorious action. Concur—Andrias, J.P., Friedman, Marlow, Nardelli and Catterson, JJ.