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

SPORTS LEGENDS, INC., Plaintiff-Appellant, v. Paul B. CARBERRY, Defendant-Respondent.

Decided: March 29, 2007

ANDRIAS, J.P., FRIEDMAN, MARLOW, NARDELLI, CATTERSON, JJ. 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 A.D.2d 709, 527 N.Y.S.2d 464 [1988] ) by appearing, even informally, on the merits (cf. USF & G v. Maggiore, 299 A.D.2d 341, 342-343, 749 N.Y.S.2d 555 [2002];  Ocuto Blacktop & Paving Co. v. Trataros Constr., 277 A.D.2d 919, 715 N.Y.S.2d 565 [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 A.D.3d 403, 783 N.Y.S.2d 562 [2004] ), and to demonstrate both a reasonable excuse for the period of non-prosecution and merit to the action (see Truong v. All Pro Air Delivery, 278 A.D.2d 45, 717 N.Y.S.2d 526 [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 A.D.2d 226, 708 N.Y.S.2d 73 [2000] ) nor a meritorious action.