On January 20, 2020 a
Motion-Secondary
was filed
involving a dispute between
Matthew Dunning,
and
City Of Buffalo,
Destro & Brothers Concrete Company, Inc.,
for Torts - Other Negligence (Premises Liability)
in the District Court of Erie County.
Preview
FILED: ERIE COUNTY CLERK 01/11/2022 03:23 PM INDEX NO. 800881/2020
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/11/2022
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
MATTHEW DUNNING,
Plaintiff
AFFIDAVIT OF CARMELO ZAGARRIO
-vs-
Index No.: 800881/2020
CITY OF BUFFALO and
f DESTRO & BROTHERS CONCRETE
COMPANY, INC.,
Defendants.
STATE OF NEW YORK )
COUNTY OF ERIE ) ss:
CITY OF BUFFALO )
says·
Carmelo Zagarrio, being duly sworn, deposes and
1. I am the President of Destro & Brothers Concrete Comprery, Inc.
2. In 2011 and 2015, Destro was awarded contracts by the City of Buffalo to repave ("mill and
overlay") various City streets.
3. I am aware that Matthew Dunning claims that he was injured in a bicycle accident after
riding over a depression in the pavement on Auburn Avenue near Norwood Avenue in the City of Buffalo
on December 1, 2018. I previously gave deposition testimony in this case.
4. I have been advised that four of the City's Inspector's Daily Reports from the 2011 job
indicate that a backhoe was one of the pieces of eq1Tipment used on those particular dates. I have reviewed
the four daily reports (10/27/11, 10/28/11, 11/8/11 and 11/11/11), and I can confirm that none of these
reports reflect the use of a backhoe on Auburn Avenue near the intersection of Norwood on the dates
indicated. Mr. Dunning's attorney did not question me about these daily reports at my deposition as they
pertain to the use of a backhoe for the work being performed.
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FILED: ERIE COUNTY CLERK 01/11/2022 03:23 PM INDEX NO. 800881/2020
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/11/2022
5. The 10/27/11 eport indicates that Destro was performing milling work on Auburn between
Richmond and Hoyt, which does not encompass the intersection with Norwood. Furthermore, milling work
would not require the use of a backhoe. Destro did not use a backhoe for such work.
6. The 10/28/11 report indicates that Destro was performing tack coating, though itdoes not
specify where on Auburn this was taking place. The application of tack coat does not require the use of a
backhoe, and Destro would not have had a backhoe on site on Auburn that day to perform such work.
7. The 11/8/11 report indicates that Destro was performing inilling work on Auburn between
Hoyt and Grant, which does not encompass the intersection with Norwood. Again, milling work would not
require the use of a backhoe, and Destro did not use a backhoe for such work.
8. The 11/11/11 report indicates that Destro was performing tack coating, though itdoes not
top"
specify where on Auburn this was taking place, as well as "6F work on Auburn between Niagara and
Mason and between Hoyt and Grant. 6F top refers to a type of asphalt that is . Neither location of this work
encompasses the intersection with Norwood. And neither work would require the use of a backhoe.
9. None of the mill and overlay work described in these daily reports would require the use of a
backhoe, which would only be needed for any excavation work. None of the work on Auburn described in
these reports involved any excavation of any kind. Our trailer, if used to transport any equipment to
Auburn, would not leave such an impression on the road, since the bottoms of the ramps are flat.
10. Furthermore, these daily reports eflect work that Destro was performing on other streets in
the City on those dates.
11. I am also aware that Mr. Dunning's attorney is suggesting that the fact that Destro owns a
backhoe bucket with five forks, which is similar in width to the depression in Auburn Avenue, somehow
implicates Destro in this matter. Having spent my entire adult life in the construction business, I can
unequivocally state tbat such buckets are some of the most common pieces of equipment owned or used by
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FILED: ERIE COUNTY CLERK 01/11/2022 03:23 PM INDEX NO. 800881/2020
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/11/2022
contractors who perform any kind of excavation. They are not at all unique to Destro. Virtually any other
contractor in Western New York and beyond who performs any kind of excavation will use a similar
bucket. If Mr. Dunning's attorney believes that Destro's possession of this bucket is some sort of "smoking
gun", he issadly mistaken.
12. As I testified at my deposition, Destro does at times perform work that tequires excavation,
such as sewer work, necessitating the use of such a bucket. But the milling and repaving work on Auburn
Avenue (as well as that on Norwood Avenue in 2015), required no such excavation.
Carmelo aga io
Sworn to before me this
A day of January, 2022.
Not Pu lic
Mary Brenda Callahan
NOTARY PUBLIC, STATE OF NEW YORK
Registration
No. 01CA6390887
in Erie County
Qualified
Commission Expires ApHI 22, 2023
3 of 3
Document Filed Date
January 11, 2022
Case Filing Date
January 20, 2020
Category
Torts - Other Negligence (Premises Liability)
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FILED: ERIE COUNTY CLERK 01/11/2022 03:23 PM INDEX NO. 800881/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/11/2022 STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE MATTHEW DUNNING, Plaintiff AFFIDAVIT OF CARMELO ZAGARRIO -vs- Index No.: 800881/2020 CITY OF BUFFALO and f DESTRO & BROTHERS CONCRETE COMPANY, INC., Defendants. STATE OF NEW YORK ) COUNTY OF ERIE ) ss: CITY OF BUFFALO ) says· Carmelo Zagarrio, being duly sworn, deposes and 1. I am the President of Destro & Brothers Concrete Comprery, Inc. 2. In 2011 and 2015, Destro was awarded contracts by the City of Buffalo to repave ("mill and overlay") various City streets. 3. I am aware that Matthew Dunning claims that he was injured in a bicycle accident after riding over a depression in the pavement on Auburn Avenue near Norwood Avenue in the City of Buffalo on December 1, 2018. I previously gave deposition testimony in this case. 4. I have been advised that four of the City's Inspector's Daily Reports from the 2011 job indicate that a backhoe was one of the pieces of eq1Tipment used on those particular dates. I have reviewed the four daily reports (10/27/11, 10/28/11, 11/8/11 and 11/11/11), and I can confirm that none of these reports reflect the use of a backhoe on Auburn Avenue near the intersection of Norwood on the dates indicated. Mr. Dunning's attorney did not question me about these daily reports at my deposition as they pertain to the use of a backhoe for the work being performed. 1 of 3 FILED: ERIE COUNTY CLERK 01/11/2022 03:23 PM INDEX NO. 800881/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/11/2022 5. The 10/27/11 eport indicates that Destro was performing milling work on Auburn between Richmond and Hoyt, which does not encompass the intersection with Norwood. Furthermore, milling work would not require the use of a backhoe. Destro did not use a backhoe for such work. 6. The 10/28/11 report indicates that Destro was performing tack coating, though itdoes not specify where on Auburn this was taking place. The application of tack coat does not require the use of a backhoe, and Destro would not have had a backhoe on site on Auburn that day to perform such work. 7. The 11/8/11 report indicates that Destro was performing inilling work on Auburn between Hoyt and Grant, which does not encompass the intersection with Norwood. Again, milling work would not require the use of a backhoe, and Destro did not use a backhoe for such work. 8. The 11/11/11 report indicates that Destro was performing tack coating, though itdoes not top" specify where on Auburn this was taking place, as well as "6F work on Auburn between Niagara and Mason and between Hoyt and Grant. 6F top refers to a type of asphalt that is . Neither location of this work encompasses the intersection with Norwood. And neither work would require the use of a backhoe. 9. None of the mill and overlay work described in these daily reports would require the use of a backhoe, which would only be needed for any excavation work. None of the work on Auburn described in these reports involved any excavation of any kind. Our trailer, if used to transport any equipment to Auburn, would not leave such an impression on the road, since the bottoms of the ramps are flat. 10. Furthermore, these daily reports eflect work that Destro was performing on other streets in the City on those dates. 11. I am also aware that Mr. Dunning's attorney is suggesting that the fact that Destro owns a backhoe bucket with five forks, which is similar in width to the depression in Auburn Avenue, somehow implicates Destro in this matter. Having spent my entire adult life in the construction business, I can unequivocally state tbat such buckets are some of the most common pieces of equipment owned or used by 2 of 3 FILED: ERIE COUNTY CLERK 01/11/2022 03:23 PM INDEX NO. 800881/2020 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 01/11/2022 contractors who perform any kind of excavation. They are not at all unique to Destro. Virtually any other contractor in Western New York and beyond who performs any kind of excavation will use a similar bucket. If Mr. Dunning's attorney believes that Destro's possession of this bucket is some sort of "smoking gun", he issadly mistaken. 12. As I testified at my deposition, Destro does at times perform work that tequires excavation, such as sewer work, necessitating the use of such a bucket. But the milling and repaving work on Auburn Avenue (as well as that on Norwood Avenue in 2015), required no such excavation. Carmelo aga io Sworn to before me this A day of January, 2022. Not Pu lic Mary Brenda Callahan NOTARY PUBLIC, STATE OF NEW YORK Registration No. 01CA6390887 in Erie County Qualified Commission Expires ApHI 22, 2023 3 of 3