This is a personal injury action alleging, inter alia, violations of the New York Labor Law "scaffolding law" that caused Plaintiff to suffer serious injuries. In a November 10, 2010 Order ("the prior order"), the Court granted Plaintiff's previous motion for entry of default judgment [*2]against Defendant Breezy Point Cooperative, Inc. ("Breezy Point"), and denied Breezy Point's cross-motion to dismiss or, alternatively, to have its untimely Answer deemed served upon Plaintiff. The issue of damages was deferred to an inquest to be held after trial against the appearing Defendant Little Tots Red Wagon, Inc. ("Little Tots"). The following motions, addressed in turn, are now before the Court.

Plaintiff moves for summary judgment on the issue of liability only, as to its claims under Labor Law § 240. Although Plaintiff includes both defendants, the Court found in the prior order that Plaintiff's Complaint states a viable cause of action, and that he was therefore entitled to a default judgment, against Breezy Point. Breezy Point therefore lacks standing to oppose Plaintiff's motion, and the Court therefore addresses Plaintiff's motion as against Little Tots. There is no dispute that Plaintiff was an employee of a contractor on Defendants' property on June 19, 2008 when the scaffolding on which he was standing collapsed, causing him to fall from a height. That collapse is prima facie evidence of a violation of Labor Law § 240(1). Montour v. City of New York, 270 AD2d 236 [2nd Dept 2000]. Although not a fee owner of the real property, Little Tot's leasehold interest and contracting with Plaintiff's employer makes it an "owner" within the meaning of § 240(1). Kwang Ho Kim v. D & W Shin Realty Corp., 47 AD3d 616 [2nd Dept 2008]. It was thus responsible for the provision of adequate safety equipment and prima facie liable when the provided scaffold failed.

Little Tots argues a factual question remains as to whether Plaintiff constructed the scaffolding and was thus the sole proximate cause of his own fall. Plaintiff and a co-worker who was also injured in the collapse, Matt Mahon, deny any role in erecting the scaffolding and state it had been erected in the same location the previous week to accommodate the work of another subcontractor. (Plf. Mot. Exhs. A-B.) In opposition, Little Tots offers an errata sheet to the deposition testimony of its owner Theresa Hyland, which was executed after Plaintiff's motion was served, offering new recollections regarding issues Ms. Hyland testified she could not recall. Ms. Hyland testified, for example, that she had not personally seen the scaffolding construction and did not recall "hear[ing] anything that would identify who the specific person was that constructed the scaffold." (Opp. Exh. A, 58.) In her errata sheet, Ms. Hyland now states definitively that Plaintiff and his crew put up the scaffolding. (Id.) The Court finds the new recollections insufficient to rebut the affidavits by Plaintiff and Mahon, the only evidence based on personal knowledge, that Plaintiff did not assemble the scaffolding that collapsed under him. More important, even if there were evidence that Plaintiff assembled the scaffolding, the case would be distinguishable from those cited by Little Tots, where a Plaintiff's misuse or negligence with safety equipment prevented summary judgment. See Heffernan v. Bais Corp., 294 AD2d 401 [2nd Dept 2002] (plaintiffs' failure to replace platform floor raised issue as to sole proximate cause); Alvarez v. Long Island Fireproof Door Co., Inc., 305 AD2d 343 [2nd Dept 2003] (evidence that plaintiff had removed a railing from platform created factual issue as to sole proximate cause). Here, there is no evidence of such misuse; the only evidence produced is that Plaintiff used the scaffolding that was provided for the job without making any alterations. In light of the collapse of that scaffolding, the additional issues discussed at length by the parties, such as the absence of rails or a safety line, are irrelevant. The Court finds that Little Tots' [*3]opposition fails to rebut the presumption of a Labor Law § 240 violation arising from the scaffolding collapse, and that Plaintiff is therefore entitled to summary judgment as to liability.

Little Tots and Breezy Point have filed separate cross-motions seeking the same relief. Each cross-moves, in part, for summary judgment and dismissal of Plaintiff's claims based in common law negligence and Labor Law § 200. The Court finds summary judgment is not warranted as factual questions remain as to whether the scaffolding constituted a dangerous condition and, if so, whether each Defendant had actual or constructive notice of said condition. Each cross-motion also seeks summary judgment as to each Defendant's cross-claim for indemnification. Little Tots argues that such relief is mandated by Breezy Point's default and, consequently, effective admission of all allegations in Plaintiff's complaint, including its supervision, direction and control of the construction project on which Plaintiff was injured.

Initially, the Court finds that Breezy Point has standing to pursue its cross-claim. As stated, supra, this Court granted Plaintiff's motion for a default judgment in the prior order. That Order was based on the ruling by the Appellate Division, Second Department that this Court had erred in allowing Breezy Point to file an untimely answer because Breezy Point had not shown a meritorious defense to Plaintiff's claim. More specifically, the Appellate Division's Order reversed this Court's Order "compel[ling] the plaintiff to accept its answer as timely." 76 AD3d 523. Little Tots has not shown that Breezy Point's pleadings were untimely as to it when it was served with Breezy Point's Answer with Cross-Claims on July 9, 2009 and in fact accepted same by serving its Answer to Cross-Claim on July 14th. (Breezy Point Cross-Mot. Exhs. C-D.) More important, the Court finds that permitting Little Tots to benefit from Breezy Point's default vis-a-vis Plaintiff would be unjust. Breezy Point provides a May 20, 2009 letter from the law firm of Faust Goetz Schenker & Blee ("Faust"), addressed to both Little Tots and Breezy Point, that states "[t]his office has been assigned by your insurance carrier Scottsdale Insurance Company to defend your interests in the personal injury action brought against it by the plaintiff Richard Ryan." (Breezy Point Opp. to Cross-Mot., Exh. A.) Seven days later, however, Faust served an answer on Plaintiff on behalf of Little Tots only, which included the cross-claim for indemnification against Breezy Point. Little Tots' papers, filed by Faust which continues as its counsel, do not address or deny that letter. The Court finds that Little Tots should not benefit from the default by Breezy Point that its counsel's letter caused or contributed to. The doctrine of unclean hands is applicable because the wrong complained of — the unkept May 20th promise of defense — is relevant to the litigation, specifically the cross-claim, and did harm to Breezy Point. See Weiss v. Mayflower Doughnut Corp., 1 NY2d 310 [1956]. Breezy Point's cross-claim and cross-motion are thus properly before the Court.

Breezy Point seeks indemnification based on an indemnification clause in its lease with Little Tots, which called for Little Tots, the tenant, to indemnify its landlord for all "claims or judgments . . . arising out of the Tenant's operation, use or occupancy" of the property. (Breezy Point Cross-Mot. Exh. E.) Ms. Hyland testified on behalf of Little Tots that her company was responsible for the costs, planning, permitting and actual construction of the building project on which Plaintiff was injured. (Id. Exh. G, 76-78.) Little Tots offers no argument in opposition to [*4]indemnification based on its contractual agreement, repeating only that Breezy Point has no cross-claim by virtue of the Appellate Division's ruling. The Court already rejected that reasoning and finds that no factual issues remain as to Little Tots' contractual indemnification obligation to Breezy Point. Accordingly, Breezy Point is entitled to summary judgment on its cross-claim. Finally, Little Tots' cross-motion is further denied to the extent it seeks summary judgment on its own cross-claim for indemnification. Little Tots again offers only the argument that it is automatically entitled to judgment on that cross-claim by virtue of Breezy Point's default in answering Plaintiff's claim, which the Court has rejected.

Based on the foregoing, it is hereby

ORDERED, that the motion by Plaintiff is granted to the extent Plaintiff is awarded summary judgment on the issue of liability only, as to its claim based on Labor Law § 240 only, and as against Defendant Little Tots Red Wagon, Inc. only; and it is further

ORDERED, that the issues of damages is deferred to the time of trial; and it is further

ORDERED, that the cross-motion by Defendant Little Tots Red Wagon, Inc is denied; and it is further

ORDERED, that the cross-motion by Defendant Breezy Point Cooperative, Inc. is granted only to the extent that Breezy Point is granted summary judgment on its cross-claim for contractual indemnification against Little Tots; and it is further

ORDERED, that the Clerk of the Court is authorized to enter judgment in accordance with the above.

Dated December 14, 2010____________________________________

Roger N. Rosengarten, J.S.C.