On February 28, 2024, the Second Department issued a decision in Christiana Trust v. Victor, 2024 NY Slip Op. 00994, holding that the service of an answer waived a defendant’s entitlement to dismissal for failure to prosecute, explaining:
The Supreme Court properly, in effect, denied that branch of the defendant’s cross-motion made in the 2016 action which was pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against him as abandoned. Pursuant to CPLR 3215(c), an action is deemed abandoned where a default has occurred and a plaintiff has failed to take proceedings for the entry of a judgment within one year thereafter. It is not necessary for a plaintiff to actually obtain a default judgment within one year of the default in order to avoid dismissal pursuant to CPLR 3215(c). Nor is a plaintiff required to specifically seek the entry of a judgment within one year. As long as the plaintiff has initiated proceedings for the entry of a judgment within one year of the default, there is no basis for dismissal of the complaint pursuant to CPLR 3215(c).
However, a defendant may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance. Here, the plaintiff correctly argues that the defendant waived his right to seek dismissal of the complaint in the 2016 action insofar as asserted against him by serving an untimely answer in the action.
(Internal quotations and citations omitted).