A defendant's active participation in the litigation may constitute a waiver of the right to seek dismissal. Here, the defendant did not move to dismiss the complaint until nearly three years after his attorney filed a notice of appearance. In addition, the defendant never sought to vacate his default in answering the complaint, and, therefore, he was precluded from raising his proffered defenses of the plaintiff's failure to comply with RPAPL 1304.
Bank of Am., N.A. v. Carapella, NY Slip Op 03844 (2d Dep't July 19, 2023)
