Opinion
12032/2009.
Decided November 10, 2010.
Skip Alan LeBlang, Law Offices of, for Plaintiff, New York, NY.
Terence M. Quinlan, of White, Quinlan Staley, for Defendant Breezy Point Cooperative, Inc., Garden City, NY.
It is ordered that this motion is decided as follows:
This is an action alleging violations of the New York Labor Law "scaffolding law" that caused Plaintiff to suffer serious injuries. Defendant Breezy Point Cooperative, Inc. ("Breezy Point"), after failing to answer Plaintiff's Complaint, moved this Court for leave to file an untimely Answer. The Court granted that relief in a September 16, 2009 Order, but was reversed by the Appellate Division, Second Department in an August 3, 2010 Decision and Order that found Breezy Point failed to demonstrate a meritorious defense to the action. (Mot. Exh. A.) Plaintiff's motion for entry of default judgment and setting an inquest on damages, now before the Court, followed. Breezy Point cross-moves to dismiss the action as abandoned or, alternatively, to have its default vacated and its previously served Answer deemed effective.
First addressing Breezy Point's cross-motion, the Court finds it is without merit for the reasons laid out in Plaintiff opposition thereto. Breezy Point argues the motion for default judgment is untimely under CPLR 3215(c) because it comes more than one year after the default. This argument ignores that this Court's prior Order effectively cured the default, which cure stood for nearly one year until reversal by the Appellate Division. A motion by Plaintiff for a default judgment during that period would indeed have been "frivolous" as Plaintiff argues. Instead, Plaintiff timely and successfully appealed that Order and the Court finds his present motion is also timely. Breezy Point's alternative request for relief from its default is an attempt to collaterally attack the Appellate Division's Decision and Order, and is barred by the law of the case doctrine. See Lipp v. Port Auth. of NY and NJ , 57 AD3d 953 [2nd Dept 2008]. The Court finds no "extraordinary circumstances" or showing of new evidence previously unavailable warrants relief from that binding law of the case. Id.
As to Plaintiff's motion for default judgment, the Court finds entry of default judgment is warranted. Upon Defendant's default, Plaintiff is entitled to recover if he has a viable cause of action based on his pleadings and any other proof offered. Beaton v. Transit Facility Corp. , 14 AD3d 637 [2nd Dept 2005]. Plaintiff's Complaint alleges that Breezy Point owned and controlled the site and project where he suffered his injuries, and was therefore responsible for the provision of safety equipment that was inadequate and malfunctioning and resulted in his injuries, in violation of the Labor Law. (Mot. Exh. 2.) The Court finds Plaintiff thus stated a viable cause of action against Breezy Point.
Based on the foregoing, it is hereby
ORDERED, that the motion is granted and the Plaintiff is entitled to a default judgment, against defendant Breezy Point Cooperative, Inc.; and it is further
ORDERED, that the issue of damages is deferred to the time of trial against the appearing defendant where an inquest will be held against the defaulting defendant herein; and it is further
ORDERED, that the cross-motion is denied; and it is further
ORDERED, that the Clerk of the Court is authorized to enter judgment in accordance with the above.