Preview
FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------X
In the Matter of the Application of CARLOS M. BELLO Index No. 523006/2020
RODRIGUEZ,
Petitioner,
-against- ADDITIONAL RESPONSE TO
DISCOVERY REQUESTS
PLAKOS SCRAP PROCESSING INC.
Respondent.
------------------------------------------------------------------X
The Defendant, PLAKOS SCRAP PROCESSING INC, by its attorneys, Kowalski & DeVito,
hereby furnishes the following response.
1. Annexed hereto is a copy of the Owner’s Manual for the Deltax Cable Stripper CSX
2010.
2. Annexed hereto is a copy of invoice 61323 dated June 28, 2011 of the purchase of
the Deltax Cable Stripper CSX 2010.
3. Annexed hereto is a copy of an updated Affidavit from Josephine Ditore from
PLAKOS SCRAP PROCESSING INC.
The defendant, PLAKOS SCRAP PROCESSING INC, hereby reserves its right to amend
and/or supplement this response upon further investigation up to and including time of trial.
Dated: New York, New York
April 12, 2021
Yours etc.,
KOWALSKI & DEVITO
Attorneys for Defendant,
PLAKOS SCRAP PROCESSING
By:
Steven Jeffrey Harkavy
80 Pine Street, Suite 300
New York, New York 10005
(718) 250-1100
Our File # NYNY-33781
E-mail: Steven.Harkavy@aig.com
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FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
TO:
Madeline Muniz, Esq.
Gregory J. Cannata & Associates, LLP
Attorney for Petitioner
60 East 42nd Street, Suite 932
New York, New York 10165
Firm: (212) 553-9009
Direct: (212) 553-9009
Fax: (212) 227-4141
Email: Mmuniz@cannatalaw.com
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FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------------------------------X Index No. 523006/2020
In the Matter of the Application of CARLOS M. BELLO
RODRIGUEZ,
AFFIDAVIT OF
Plaintiff, DUE DILIGENCE
-against-
PLAKOS SCRAP PROCESSING INC.
Defendant.
------------------------------------------------------------------X
STATE OF NEW YORK )
ss.:
COUNTY OF KINGS )
JOSEPHINE DITORE, being duly sworn, deposes and states the following under
penalties of perjury:
1. I am employed as a Manager by PLAKOS SCRAP PROCESSING INC. My
duties include conducting searches for documents and/or information requested by counsel
representing PLAKOS SCRAP PROCESSING INC.
2. I have been informed by counsel for PLAKOS SCRAP PROCESSING INC,
Kowalski & DeVito that plaintiff is claiming that he sustained personal injuries on March 18,
2020 at the PLAKOS SCRAP PROCESSING INC’s facility located 769 E. 95th Street, Brooklyn,
New York 11236.
3. In this case, I have been requested by counsel representing PLAKOS SCRAP
PROCESSING INC., to conduct a search for the deed or title of the premises, proof of ownership
of the machine in question, the name of the manufacturer of the machine, the make and model of
the machine, all accident and investigative reports concerning plaintiff’s injuries, copies of all
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FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
documents regarding the purchase and/or lease of the machine in question, including all sales
receipts; copies of all owner’s manuals, safety guides, and any other documentation concerning
the machine, copies of all maintenance, service and repair records for the two (2) years prior to
the accident and all contracts and leases regarding the ownership of the property where the
accident occurred.
4. Additionally, I have been also been asked to provide the attorneys for PLAKOS
SCRAP PROCESSING INC., a copy of the Worker’s Compensation records for the injuries
alleged sustained by the plaintiff.
5. After conducting a search of all the above, I was able to provide the attorneys for
PLAKOS SCRAP PROCESSING INC., the make and the model of the machine, a copy of the
receipt of ownership of the machine, a copy of the owner’s manual and the name of the person
who is currently providing me a with the copy of the Worker’s Compensation file which should
include the incident report/accident report that I sent to Worker’s Compensation is Shauna
Dennis.
6. On April 5, 2021, I was advised by my attorney, that my attorney hired an
engineer, Daniel McDonough from ARCCA, to review the pictures that the petitioner previously
sent to our attention. This review occurred on April 1 and April 2, 2021.
7. Per my conversation with my attorney, and per my expert’s review, I was advised
that the make and model of the machine, based upon the pictures that the petitioner sent to our
attention, shows that the machine in question, allegedly involved in this accident, was a wire
stripper machine, Deltax CSX 2010 model. I was further advised by my attorney that our expert
confirmed the model of the machine, and by expanding the pictures to see that this was a Deltax
machine. Pursuant to further investigation by Engineer Daniel McDonough, upon reviewing the
2
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FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
Deltax website, that the machine in the photographs supplied by the petitioner, matched the
Deltax CSX 2010 model, pursuant to the Deltax CO UK Website.
8. On April 6, 2021, PLAKOS SCRAP PROCESSING LLC., confirmed that they
had a Deltax cable stripper machine on their premises. At that point, I followed through with
Mark Zelunka from Gensco Equipment to confirm the purchase of the Deltax Machine, the
invoice and the owner’s manual.
9. On April 7, 2021, Mr. Zelunka confirmed that the machine in question, was a
Deltax cable stripper CSX 2010 machine.
10. Therefore, the made and model of the machine based upon the pictures that
Petitioner previously sent to our attention, is a Deltax Cable Stripper CSX 2010 machine. Please
see the owner’s manual of the Deltax Cable Stripper CSX 2010 machine, which we will provide
in our Response to Discovery Request. We are also enclosing invoice 61323 dated June 28, 2011,
of the purchase of the Deltax Cable Stripper CSX 2010. Please review in our Response to
additional discovery.
11. Upon information and belief, the manufacturer of the Deltax Cable Stripper CSX
2010 machine is Deltax UK LTD.
12. The machine was sold to PLAKOS SCRAP PROCESSING INC by Gensco
Equipment, (1990) Inc.
13. Upon information and belief, PLAKOS SCRAP PROCESSING INC., does not
perform or hire anyone to perform maintenance to the machine in question. PLAKOS however,
has a mechanic or supervisor change the blades to the machine as needed.
3
5 of 32
732-613-3986 p.7
FILED:
Apr 12 21 KINGS
04:24p Steve
COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
Upon informatiañ and 769 E.
95™ alter
14. belief, STREET, INC, an ego corpc-ration
956
for PLAKOS SC3LAP PROCESSING INC., is the owner of the premises located at 769 E.
Street, Brooklyn, New York 11236, which is the site of plaintiff's incident.
15. At this time, I do not have a copy of the deed or itleof the prezhises copies of aII
mahtmace, service or repair acords for the 2 years prior to the accident and any contracts and
leases regardiñg the ownership of the property. where the acciden.tWecûrred
16. With respect to the documents that Ó have beenÈsked to locate is natter, I can
state that I have cüüducted a diligent search as described above and to the best of my knowledge,
and after reasonable inquiry, I can .state that unne of the records indicated hereinabove were
located.
'
17. Based on the foregoing, the re qu ted documents in paragraph numbered '10 are
not in the possession of PLAKOS SCRAP PROC G IN .
Josephine Ditme
Sworn to before me this
202.7"
day of Ap 2 L "This no.tarizationwas made pursuant to Executive Order
[
Notary Public
STEVEN JEFFREY HARKAVY
Public,State of New York
Notary
No. 24-02HA4988542
Qualified inKings Coun
Commission Expires NovemberÏ2, .1Ù1
4
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FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
Invoice
Date Invoice #
GENSCO EQUIPMENT (1990) INC.
53 Carlaw Avenue 2011-05-11 60871
Toronto, Ontario, Canada
M4M 2R6
info@genscoequip.com; www.genscoequip.com
ph: 416-465-7521; fax: 416-465-4489
Bill To Ship To
PLAKOS SCRAP PROCESSING INC PLAKOS SCRAP PROCESSING INC
769 E. 95TH STREET 769 E. 95TH STREET
BROOKLYN, NY 11236 BROOKLYN, NY 11236
TEL: 718-385-0707
S.O. No. P.O. No. Terms Due Date Rep Ship Date Ship Via
88729 PETE PAID by wire tr. 2011-05-11 LM 2011-04-25 LIGHTNING
Description Qty Rate Net
MODEL DTX300 HYDRAULIC AALIGATOR SHEAR, 12 1 9,400.00 9,400.00
INCH BLADES, WITH HOLD-DOWN AND GUARD, 10 HP
220 VOT 3 PHASE ELECTRICS, STOCK NO. 13149
MODEL DTX4/600 HYDRAULIC ALLIGATOR SHEAR 1 15,500.00 15,500.00
WITH 24 INCH BLADES, WITH HOLD-DOWN AND
GUARD, FOOT CONTROL, 10 HP 220 VOLT 3 PHSE
ELECTRICS, STOCK NO. 13150
DELIVERY 1 1,200.00 1,200.00
PAYABLE IN U.S. FUNDS
Subtotal $26,100.00
Sales Tax Total $0.00
Business Number: 10198 4250 RT 0001
Total $26,100.00
ALL SALES SUBJECT TO GENSCO STANDARD TERMS & CONDITIONS.
GOODS ARE NOT TO BE RETURNED WITHOUT OUR PERMISSION AND Amount Paid -$26,100.00
MUST INCLUDE RETURN AUTHORIZATION NUMBER. DISCREPENCIES
OR DAMAGE CLAIMS MUST BE MADE WITHIN 48 HOURS.
Balance Due $0.00
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FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020
NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
a
CSX 2010 CABLE STRIPPER
OPERATORS INSTRUCTION AND SERVICE HANDBOOK
CUSTOMER:
MACHINE SERIAL NO.
MOTOR PHASE
KW
VOLTS
DATE:
O GENSCO EQUIPMENT (1990) Inc. O GENSCO AMERICA INC.
53 Carlaw Avenue 5307 Dividend Drive
Toronto, Canada Decatur, Georgia 30035
M4M 2R6
Phone: 416-465-7521 Phone: 770-808-8711
Fax: 416-465-4489 Fax: 770-808-8739
Across USA Call1-800-268-6797
E Mail: info@aenscoeauip.com
Intemet:www.aenscoeauip.com
Serving iñdü5tri world wide since 1919
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
GEN5to
WARRANTY
ALL ORDERS FOR PRODUCT ARE SUBJECT TO THE FOLLOWING:
Gensco Eq:‡rsst (1990) Inc. warrants each product to be free from defects in
material and workmanship under normal use and service. Gensco Equipment's
obligation under this warranty is limited to repairing or supplying, at our option, a
part or parts to replace any defective part or parts which fail,within one (1) year
from date of original sale. No product shall be returned without prior authorized
approval, and if authorized, the transportation charges shall be prepaid to Gensco
Equipment, Toronto, Canada, or Gensco America, Decatur, GA. Unauthorized
returns will not be accepted.
The provisions of this warranty shall not apply to any part or parts which have been
subject to misuse, =cgligence or accident, or which have been repaired or altered
outside of Gensco Equipment's service department in any way, so, as in the
judgment of Gensco Equipment to affect adversely its performañce, stability or
reliability.
Gensco Equip:ñcñ‡ neither assumes nor authorizes anyone to assume for it any
other obligation or liability for any loss or damage, either direct, incidental or
consequential, resulting from or arising out of, or in caññêction with, any of its
defective part or parts.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANT ABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, AND OF ANY OTHER OBLIGATION OR LIABILITY ON THE
PART OF GENSCO EQUIPMENT OF ANY NATURE WHATSOEVER.
RETURN POLICY
A Returned Goods Authoriva*ian must be obtained from Gensco Equipsest prior
to the return of any product. All shipments to us must be sent freight prepaid.
Upon inspection, should the Quality Control Department determine the product to
be defective, credit will be issued accordingly.
new"
For pradact returned in an "as condition, the restocking charges are as
follows:
RETURNED FROM DATE STOCK ITEMS SPECIAL ORDER ITEMS
OF ORIGINAL SHIPMENT
120 Days 20% 50%
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
GENSCO
ANGBBh
1- DO NOT ATTEMPT TO OPERATE GENSCO STRIPPING MACHINE
WITHOUT PROPER TRAINING FROM OPERATIONS MANAGER OR HIS
DELEGATE.
2 - PERSONNEL PROTECTIVE EQUIPMENT MUST BE WORN AT ALL TIMES
WHEN CHECKING OR OPERATING GENSCO STRIPPER.
3 - MAKE SURE WORK AREA IS CLEAN AND UNOBSTRUCTED.
4 - CHECK ELECTRICAL CORDS FOR CRACKING AND FRAYlNG MAKE SURE
ALL CONTACTS ARE CLEAN AND GROUND CONNECTIONS ARE IN GOOD
CONDITION.
5 - MAKE SURE ALL SAFETY DEVICES ARE OPERABLE AND EMERGENCY STOP
BUTFONS/BARS ARE FUNCTIONING PROPERLY.
6 - BEFORE CONNECTING MAIN CURRENT MAKE SURE NO ONE IS WORKING ON THE MACHINE
7 - CHECK BLADES AND FEED ROLLERS FOR WEAR AND TEAR SHOULD BE CHANGED IF NECESSARY.
8 - REPORT ANY AND ALL DEFECTS TO YOUR IF NECESSARY USE LOCK-OUT PROCEDURES.
SUPERVISOR,
9 - DON'T FORGET 5 DROPS OF Oll PRIOR TO PROCESSING MATERIAL
GENSCO STRIPPE R: G1
WORK WITH SAFETY IN MIND AT ALL TIMES
MODEl: GSX 2010
NEVER CUT CORNERS - NEVER TAKE CHANCES
SE RIAL #:10587
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
Lock Out Sequence for Gensco ........
1. Follow the procedure for
notification of lock out.
2. Ifmachine is energized or
operating, shut itdown by normal
shut down process. e3
3. Lock out the disconnect switch on
the wall marked Gensco Stripper.
Place your lock in the appropriate
disconnect receptacle and attach
the red tag, Unplug the Gensco
Stripper and tieback the female
receptacle and chord rollup the
end of the chord beside the
Gensco stripper and make sure
allon/off switches are in the off ..
position.
4. Test machine to make sure itis
not operable and is completely
de-energized.
5. Machine is now locked out.
Restoring Equipment to Service
1. When servicing or mainteñañce is completed and the machine or equipment is
ready to retum to normal operating condition, the following steps shall be taken.
2. Check the work area to ensure that allemplayees have be safely positioned or
removed from that area.
3. Verify that the controls are in Neutral or Off Position.
4. Remove the locked devices and Red Tag and re-energize the
machine/equipment.
5. Notify affected employees/supervisors that the servicing or mainteñañce is
completed and the machine/equipment is ready to use.
6. The delegate/supervisor is responsible to advise the originator of the Red Tag
that the defect or defects have been corrected.
7. Supervisor/delegate will audit the Red Tag logbook on his safety inspections.
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
SAFETY PRECAUTIONS
IMPORTANT
WARNING These precautions
safety
have been prepared to assist the operator and maintenance personnel
Read related pre-
safety in practicing good shop safety procedures.
cautions before operating
this machine. Failure to Operator and personnel must read and understand these
maintenance
follow safety instructions precautions or per-
completely before operating, setting up, running,
result in serious per"
may forming maintenance on the machine.
sonal injury.
These precautions are to be used as a guide to supplement pre-
safety
cautions and wamings in the following:
a. All other manuals pertaining to the machine.
WARNING b. Local, plant, and shop safety rules and codes.
In order to showde-
clearly c. Federal and national safety laws and regulations.
tails of this machine, some
covers, shields, guards, See the latest edition of the OCCUPATIONAL SAFETY AND
HEALTH available from the DEPARTMENT OF1.A-
barriers, devices, or doors STANDARDS,
have either been removed BOR, WASHINGTON, D.C.
"open"
or shown in an
position. All such protec. GENERAL SAFETY INSTRUCTIONS AND CONSIDERATIONS
tive components must be
installed in position before PERSONAL SAFETY
operating this machine.
Machine and service per-
Failure this owners, operators, setup men, maintenance,
to follow
sonnel must be aware of the fact that constant pro-
instruction result in day-t½y safety
may
cedures are a vital part of their job. Accident prevention must be one of
serious personal injury.
the principal objectives of the job regardless of what activity is involved.
Know and respect your machinery. Read and practice the prescribed
WARNING safety and checking procedures. Make sure that everyone who works
or near you understands and - more - com-
for, with, fully importantly
Failure to follow instruc- plies with the precautions and procedures when operat-
following safety
tions on this page re- this machine.
may ing
suit in serious personal in-
jury. Sudden movements, loud noises, horseplay, etc., must be avoided.
_____. _ These
near
distractions
the machinery.
may result in unsafe conditions for those working
Observe and follow safety instructions such as "NO SMOKING", "High
Voltage", "DANGER", etc., in your working area.
Accidents can occur that result in serious personal injury to yourself or
others due to clothing and other articles becoming entangled in cutters,
hand wheels, levers, or moving machine elements. The following
suggestions, iffollowed, will help you to avoid such accidents: Neckties,
scarfs, gloves, loose hanging clothing, and jewelry such as watches,
or necklaces must not be wom around machinery. Re-
rings, moving
strain hair with a cap or net. Wear gloves only when handling
long
rough, sharp, or hot parts.
Use protective equipment. Wear clean approved eye or face
safety
protection. Safety-toe shoes with slip-proof soles can help you avoid
injury. Keep your protective equipment in good condition.
Never operate or service this equipment ifaffected by alcohol, drugs or
other substances or conditions which decrease alertness or judgment.
12 of 32 Pace 1
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
WORK AREA SAFETY
MMING Always areas with such hazards
keep your work area clean. Dirty work
instruc- as or water on the floor cause someone to falltothe floor,
Failure to follow oil, debris, may
so- into the or in serious personalinju-
tions on this page may machine, onto other objects resulting
personal in- ry.
suit in serious
®
Make sure your work area is free of hazardous obstructions and be
aware of protruding machine members.
Retum tools and similar equipment to their proper storage place im-
mediately after use. Keep work benches neat, orderly, and clean.
Report unsafe conditions to your supervisor or depart-
working safety
ment. items such as: wom or broken flooring, ladders, and handrails,
unstable or or scaffolds must be reported and re-
slippery platforms,
paired before use. Do not use skids, work pieces, stock, machines, tote
pans, and boxes as makeshift climbing aides.
TOOL SAFETY
.
Sharp edged cutting tools must be handled with gloves or a shop cloth.
inspect cutting tools before use and reject defective tools.
Remove hand such as ham-
tooling wrenches, measuring equipment,
and other miscellaneous parts from the machine al-
mers, immediately
ter usage.
LIFTING AND CARRYING SAFETY
Contact supervision ifyou have any questions or are not sure about the
proper procedures for and canying. ·
lifting
Before or an determine the weight and size re-
lifting carrying object, by
to such things as marked informa-
fening tags, shipping data, labels,
tion, or manuals.
Use power hoists or other mechanical lifting and canying equipment for
or hard to handle objects. Use methods recom-
heavy, bulky, hookup
mended your department and know the signals for di-
by safety safely
recting a crane operator.
Never place any part of your body under a suspended load or move a
suspended load over any part of another person's body. Before lifting,
be certain that you have a safe spot for depositing the load. Never work
on a component while itis from a crane or other mecha-
hanging lifting
nism.
Always inspect slings, chains, hoists, and other lifting devices prior to
use. Do not use lifting devices found to be defective or questionable.
. Never exceed the rated of eye-
safety capacity cranes, hoists, slings,
and other equipment. Follow standards and instructions ap-
bolts, lifting
plicable to any liftingequipment you use. (For example, ANSI Standard
B18.15, available from The American National Standards Institute, inc,
1430 New New York contains information con-
Broadway, York, 10018,
coming safe liftingloads for different size eyebolts, for various angles
of liftand application instructions for safe use of eyebolts.)
13 of 32
Pace 2
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NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021
Keep all parts of your body off the machine table, table edge, out of the
WARNING path of moving units, tripdogs, trip plungers, and out of the areas
workiñÿ
during operation. Never lean on a machine or reach over or through a
follow instruc•
Failure to machiñe - you can become entangled in tooliñg and other moving
re-
tions on this page may elements or you activate start
may accideñtally buttons, feed controls,
serious personal in-
suit in rapid traverse power work
controls, holding control, or similar devices.
jury.
.. . __
...... __.
During operation, be attentive to the machining process. Excessive
vibration, unusual sounds, etc., can indicate problems requiring your
immediate attention. Watch for conditions such as packed chips or grit
which can cause breakage of tooling or machine elements.
Shut off power to the machine when leaving the operating area or at the
end of your work period. Never leave the machine running unattended,
unless machine is part of an unattended manufacturing system and in
a production cycle. Tum the master disconnect device to the OFF posi-
tion before cleaning the machine at the end of the working day or when
guards or covers are removed that expose hazardous areas.
Preview
FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------X In the Matter of the Application of CARLOS M. BELLO Index No. 523006/2020 RODRIGUEZ, Petitioner, -against- ADDITIONAL RESPONSE TO DISCOVERY REQUESTS PLAKOS SCRAP PROCESSING INC. Respondent. ------------------------------------------------------------------X The Defendant, PLAKOS SCRAP PROCESSING INC, by its attorneys, Kowalski & DeVito, hereby furnishes the following response. 1. Annexed hereto is a copy of the Owner’s Manual for the Deltax Cable Stripper CSX 2010. 2. Annexed hereto is a copy of invoice 61323 dated June 28, 2011 of the purchase of the Deltax Cable Stripper CSX 2010. 3. Annexed hereto is a copy of an updated Affidavit from Josephine Ditore from PLAKOS SCRAP PROCESSING INC. The defendant, PLAKOS SCRAP PROCESSING INC, hereby reserves its right to amend and/or supplement this response upon further investigation up to and including time of trial. Dated: New York, New York April 12, 2021 Yours etc., KOWALSKI & DEVITO Attorneys for Defendant, PLAKOS SCRAP PROCESSING By: Steven Jeffrey Harkavy 80 Pine Street, Suite 300 New York, New York 10005 (718) 250-1100 Our File # NYNY-33781 E-mail: Steven.Harkavy@aig.com 1 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 TO: Madeline Muniz, Esq. Gregory J. Cannata & Associates, LLP Attorney for Petitioner 60 East 42nd Street, Suite 932 New York, New York 10165 Firm: (212) 553-9009 Direct: (212) 553-9009 Fax: (212) 227-4141 Email: Mmuniz@cannatalaw.com 2 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------------------------------X Index No. 523006/2020 In the Matter of the Application of CARLOS M. BELLO RODRIGUEZ, AFFIDAVIT OF Plaintiff, DUE DILIGENCE -against- PLAKOS SCRAP PROCESSING INC. Defendant. ------------------------------------------------------------------X STATE OF NEW YORK ) ss.: COUNTY OF KINGS ) JOSEPHINE DITORE, being duly sworn, deposes and states the following under penalties of perjury: 1. I am employed as a Manager by PLAKOS SCRAP PROCESSING INC. My duties include conducting searches for documents and/or information requested by counsel representing PLAKOS SCRAP PROCESSING INC. 2. I have been informed by counsel for PLAKOS SCRAP PROCESSING INC, Kowalski & DeVito that plaintiff is claiming that he sustained personal injuries on March 18, 2020 at the PLAKOS SCRAP PROCESSING INC’s facility located 769 E. 95th Street, Brooklyn, New York 11236. 3. In this case, I have been requested by counsel representing PLAKOS SCRAP PROCESSING INC., to conduct a search for the deed or title of the premises, proof of ownership of the machine in question, the name of the manufacturer of the machine, the make and model of the machine, all accident and investigative reports concerning plaintiff’s injuries, copies of all 3 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 documents regarding the purchase and/or lease of the machine in question, including all sales receipts; copies of all owner’s manuals, safety guides, and any other documentation concerning the machine, copies of all maintenance, service and repair records for the two (2) years prior to the accident and all contracts and leases regarding the ownership of the property where the accident occurred. 4. Additionally, I have been also been asked to provide the attorneys for PLAKOS SCRAP PROCESSING INC., a copy of the Worker’s Compensation records for the injuries alleged sustained by the plaintiff. 5. After conducting a search of all the above, I was able to provide the attorneys for PLAKOS SCRAP PROCESSING INC., the make and the model of the machine, a copy of the receipt of ownership of the machine, a copy of the owner’s manual and the name of the person who is currently providing me a with the copy of the Worker’s Compensation file which should include the incident report/accident report that I sent to Worker’s Compensation is Shauna Dennis. 6. On April 5, 2021, I was advised by my attorney, that my attorney hired an engineer, Daniel McDonough from ARCCA, to review the pictures that the petitioner previously sent to our attention. This review occurred on April 1 and April 2, 2021. 7. Per my conversation with my attorney, and per my expert’s review, I was advised that the make and model of the machine, based upon the pictures that the petitioner sent to our attention, shows that the machine in question, allegedly involved in this accident, was a wire stripper machine, Deltax CSX 2010 model. I was further advised by my attorney that our expert confirmed the model of the machine, and by expanding the pictures to see that this was a Deltax machine. Pursuant to further investigation by Engineer Daniel McDonough, upon reviewing the 2 4 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 Deltax website, that the machine in the photographs supplied by the petitioner, matched the Deltax CSX 2010 model, pursuant to the Deltax CO UK Website. 8. On April 6, 2021, PLAKOS SCRAP PROCESSING LLC., confirmed that they had a Deltax cable stripper machine on their premises. At that point, I followed through with Mark Zelunka from Gensco Equipment to confirm the purchase of the Deltax Machine, the invoice and the owner’s manual. 9. On April 7, 2021, Mr. Zelunka confirmed that the machine in question, was a Deltax cable stripper CSX 2010 machine. 10. Therefore, the made and model of the machine based upon the pictures that Petitioner previously sent to our attention, is a Deltax Cable Stripper CSX 2010 machine. Please see the owner’s manual of the Deltax Cable Stripper CSX 2010 machine, which we will provide in our Response to Discovery Request. We are also enclosing invoice 61323 dated June 28, 2011, of the purchase of the Deltax Cable Stripper CSX 2010. Please review in our Response to additional discovery. 11. Upon information and belief, the manufacturer of the Deltax Cable Stripper CSX 2010 machine is Deltax UK LTD. 12. The machine was sold to PLAKOS SCRAP PROCESSING INC by Gensco Equipment, (1990) Inc. 13. Upon information and belief, PLAKOS SCRAP PROCESSING INC., does not perform or hire anyone to perform maintenance to the machine in question. PLAKOS however, has a mechanic or supervisor change the blades to the machine as needed. 3 5 of 32 732-613-3986 p.7 FILED: Apr 12 21 KINGS 04:24p Steve COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 Upon informatiañ and 769 E. 95™ alter 14. belief, STREET, INC, an ego corpc-ration 956 for PLAKOS SC3LAP PROCESSING INC., is the owner of the premises located at 769 E. Street, Brooklyn, New York 11236, which is the site of plaintiff's incident. 15. At this time, I do not have a copy of the deed or itleof the prezhises copies of aII mahtmace, service or repair acords for the 2 years prior to the accident and any contracts and leases regardiñg the ownership of the property. where the acciden.tWecûrred 16. With respect to the documents that Ó have beenÈsked to locate is natter, I can state that I have cüüducted a diligent search as described above and to the best of my knowledge, and after reasonable inquiry, I can .state that unne of the records indicated hereinabove were located. ' 17. Based on the foregoing, the re qu ted documents in paragraph numbered '10 are not in the possession of PLAKOS SCRAP PROC G IN . Josephine Ditme Sworn to before me this 202.7" day of Ap 2 L "This no.tarizationwas made pursuant to Executive Order [ Notary Public STEVEN JEFFREY HARKAVY Public,State of New York Notary No. 24-02HA4988542 Qualified inKings Coun Commission Expires NovemberÏ2, .1Ù1 4 6 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 Invoice Date Invoice # GENSCO EQUIPMENT (1990) INC. 53 Carlaw Avenue 2011-05-11 60871 Toronto, Ontario, Canada M4M 2R6 info@genscoequip.com; www.genscoequip.com ph: 416-465-7521; fax: 416-465-4489 Bill To Ship To PLAKOS SCRAP PROCESSING INC PLAKOS SCRAP PROCESSING INC 769 E. 95TH STREET 769 E. 95TH STREET BROOKLYN, NY 11236 BROOKLYN, NY 11236 TEL: 718-385-0707 S.O. No. P.O. No. Terms Due Date Rep Ship Date Ship Via 88729 PETE PAID by wire tr. 2011-05-11 LM 2011-04-25 LIGHTNING Description Qty Rate Net MODEL DTX300 HYDRAULIC AALIGATOR SHEAR, 12 1 9,400.00 9,400.00 INCH BLADES, WITH HOLD-DOWN AND GUARD, 10 HP 220 VOT 3 PHASE ELECTRICS, STOCK NO. 13149 MODEL DTX4/600 HYDRAULIC ALLIGATOR SHEAR 1 15,500.00 15,500.00 WITH 24 INCH BLADES, WITH HOLD-DOWN AND GUARD, FOOT CONTROL, 10 HP 220 VOLT 3 PHSE ELECTRICS, STOCK NO. 13150 DELIVERY 1 1,200.00 1,200.00 PAYABLE IN U.S. FUNDS Subtotal $26,100.00 Sales Tax Total $0.00 Business Number: 10198 4250 RT 0001 Total $26,100.00 ALL SALES SUBJECT TO GENSCO STANDARD TERMS & CONDITIONS. GOODS ARE NOT TO BE RETURNED WITHOUT OUR PERMISSION AND Amount Paid -$26,100.00 MUST INCLUDE RETURN AUTHORIZATION NUMBER. DISCREPENCIES OR DAMAGE CLAIMS MUST BE MADE WITHIN 48 HOURS. Balance Due $0.00 7 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 a CSX 2010 CABLE STRIPPER OPERATORS INSTRUCTION AND SERVICE HANDBOOK CUSTOMER: MACHINE SERIAL NO. MOTOR PHASE KW VOLTS DATE: O GENSCO EQUIPMENT (1990) Inc. O GENSCO AMERICA INC. 53 Carlaw Avenue 5307 Dividend Drive Toronto, Canada Decatur, Georgia 30035 M4M 2R6 Phone: 416-465-7521 Phone: 770-808-8711 Fax: 416-465-4489 Fax: 770-808-8739 Across USA Call1-800-268-6797 E Mail: info@aenscoeauip.com Intemet:www.aenscoeauip.com Serving iñdü5tri world wide since 1919 8 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 GEN5to WARRANTY ALL ORDERS FOR PRODUCT ARE SUBJECT TO THE FOLLOWING: Gensco Eq:‡rsst (1990) Inc. warrants each product to be free from defects in material and workmanship under normal use and service. Gensco Equipment's obligation under this warranty is limited to repairing or supplying, at our option, a part or parts to replace any defective part or parts which fail,within one (1) year from date of original sale. No product shall be returned without prior authorized approval, and if authorized, the transportation charges shall be prepaid to Gensco Equipment, Toronto, Canada, or Gensco America, Decatur, GA. Unauthorized returns will not be accepted. The provisions of this warranty shall not apply to any part or parts which have been subject to misuse, =cgligence or accident, or which have been repaired or altered outside of Gensco Equipment's service department in any way, so, as in the judgment of Gensco Equipment to affect adversely its performañce, stability or reliability. Gensco Equip:ñcñ‡ neither assumes nor authorizes anyone to assume for it any other obligation or liability for any loss or damage, either direct, incidental or consequential, resulting from or arising out of, or in caññêction with, any of its defective part or parts. THIS WARRANTY IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND OF ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF GENSCO EQUIPMENT OF ANY NATURE WHATSOEVER. RETURN POLICY A Returned Goods Authoriva*ian must be obtained from Gensco Equipsest prior to the return of any product. All shipments to us must be sent freight prepaid. Upon inspection, should the Quality Control Department determine the product to be defective, credit will be issued accordingly. new" For pradact returned in an "as condition, the restocking charges are as follows: RETURNED FROM DATE STOCK ITEMS SPECIAL ORDER ITEMS OF ORIGINAL SHIPMENT 120 Days 20% 50% 9 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 GENSCO ANGBBh 1- DO NOT ATTEMPT TO OPERATE GENSCO STRIPPING MACHINE WITHOUT PROPER TRAINING FROM OPERATIONS MANAGER OR HIS DELEGATE. 2 - PERSONNEL PROTECTIVE EQUIPMENT MUST BE WORN AT ALL TIMES WHEN CHECKING OR OPERATING GENSCO STRIPPER. 3 - MAKE SURE WORK AREA IS CLEAN AND UNOBSTRUCTED. 4 - CHECK ELECTRICAL CORDS FOR CRACKING AND FRAYlNG MAKE SURE ALL CONTACTS ARE CLEAN AND GROUND CONNECTIONS ARE IN GOOD CONDITION. 5 - MAKE SURE ALL SAFETY DEVICES ARE OPERABLE AND EMERGENCY STOP BUTFONS/BARS ARE FUNCTIONING PROPERLY. 6 - BEFORE CONNECTING MAIN CURRENT MAKE SURE NO ONE IS WORKING ON THE MACHINE 7 - CHECK BLADES AND FEED ROLLERS FOR WEAR AND TEAR SHOULD BE CHANGED IF NECESSARY. 8 - REPORT ANY AND ALL DEFECTS TO YOUR IF NECESSARY USE LOCK-OUT PROCEDURES. SUPERVISOR, 9 - DON'T FORGET 5 DROPS OF Oll PRIOR TO PROCESSING MATERIAL GENSCO STRIPPE R: G1 WORK WITH SAFETY IN MIND AT ALL TIMES MODEl: GSX 2010 NEVER CUT CORNERS - NEVER TAKE CHANCES SE RIAL #:10587 10 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 Lock Out Sequence for Gensco ........ 1. Follow the procedure for notification of lock out. 2. Ifmachine is energized or operating, shut itdown by normal shut down process. e3 3. Lock out the disconnect switch on the wall marked Gensco Stripper. Place your lock in the appropriate disconnect receptacle and attach the red tag, Unplug the Gensco Stripper and tieback the female receptacle and chord rollup the end of the chord beside the Gensco stripper and make sure allon/off switches are in the off .. position. 4. Test machine to make sure itis not operable and is completely de-energized. 5. Machine is now locked out. Restoring Equipment to Service 1. When servicing or mainteñañce is completed and the machine or equipment is ready to retum to normal operating condition, the following steps shall be taken. 2. Check the work area to ensure that allemplayees have be safely positioned or removed from that area. 3. Verify that the controls are in Neutral or Off Position. 4. Remove the locked devices and Red Tag and re-energize the machine/equipment. 5. Notify affected employees/supervisors that the servicing or mainteñañce is completed and the machine/equipment is ready to use. 6. The delegate/supervisor is responsible to advise the originator of the Red Tag that the defect or defects have been corrected. 7. Supervisor/delegate will audit the Red Tag logbook on his safety inspections. 11 of 32 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 SAFETY PRECAUTIONS IMPORTANT WARNING These precautions safety have been prepared to assist the operator and maintenance personnel Read related pre- safety in practicing good shop safety procedures. cautions before operating this machine. Failure to Operator and personnel must read and understand these maintenance follow safety instructions precautions or per- completely before operating, setting up, running, result in serious per" may forming maintenance on the machine. sonal injury. These precautions are to be used as a guide to supplement pre- safety cautions and wamings in the following: a. All other manuals pertaining to the machine. WARNING b. Local, plant, and shop safety rules and codes. In order to showde- clearly c. Federal and national safety laws and regulations. tails of this machine, some covers, shields, guards, See the latest edition of the OCCUPATIONAL SAFETY AND HEALTH available from the DEPARTMENT OF1.A- barriers, devices, or doors STANDARDS, have either been removed BOR, WASHINGTON, D.C. "open" or shown in an position. All such protec. GENERAL SAFETY INSTRUCTIONS AND CONSIDERATIONS tive components must be installed in position before PERSONAL SAFETY operating this machine. Machine and service per- Failure this owners, operators, setup men, maintenance, to follow sonnel must be aware of the fact that constant pro- instruction result in day-t½y safety may cedures are a vital part of their job. Accident prevention must be one of serious personal injury. the principal objectives of the job regardless of what activity is involved. Know and respect your machinery. Read and practice the prescribed WARNING safety and checking procedures. Make sure that everyone who works or near you understands and - more - com- for, with, fully importantly Failure to follow instruc- plies with the precautions and procedures when operat- following safety tions on this page re- this machine. may ing suit in serious personal in- jury. Sudden movements, loud noises, horseplay, etc., must be avoided. _____. _ These near distractions the machinery. may result in unsafe conditions for those working Observe and follow safety instructions such as "NO SMOKING", "High Voltage", "DANGER", etc., in your working area. Accidents can occur that result in serious personal injury to yourself or others due to clothing and other articles becoming entangled in cutters, hand wheels, levers, or moving machine elements. The following suggestions, iffollowed, will help you to avoid such accidents: Neckties, scarfs, gloves, loose hanging clothing, and jewelry such as watches, or necklaces must not be wom around machinery. Re- rings, moving strain hair with a cap or net. Wear gloves only when handling long rough, sharp, or hot parts. Use protective equipment. Wear clean approved eye or face safety protection. Safety-toe shoes with slip-proof soles can help you avoid injury. Keep your protective equipment in good condition. Never operate or service this equipment ifaffected by alcohol, drugs or other substances or conditions which decrease alertness or judgment. 12 of 32 Pace 1 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 WORK AREA SAFETY MMING Always areas with such hazards keep your work area clean. Dirty work instruc- as or water on the floor cause someone to falltothe floor, Failure to follow oil, debris, may so- into the or in serious personalinju- tions on this page may machine, onto other objects resulting personal in- ry. suit in serious ® Make sure your work area is free of hazardous obstructions and be aware of protruding machine members. Retum tools and similar equipment to their proper storage place im- mediately after use. Keep work benches neat, orderly, and clean. Report unsafe conditions to your supervisor or depart- working safety ment. items such as: wom or broken flooring, ladders, and handrails, unstable or or scaffolds must be reported and re- slippery platforms, paired before use. Do not use skids, work pieces, stock, machines, tote pans, and boxes as makeshift climbing aides. TOOL SAFETY . Sharp edged cutting tools must be handled with gloves or a shop cloth. inspect cutting tools before use and reject defective tools. Remove hand such as ham- tooling wrenches, measuring equipment, and other miscellaneous parts from the machine al- mers, immediately ter usage. LIFTING AND CARRYING SAFETY Contact supervision ifyou have any questions or are not sure about the proper procedures for and canying. · lifting Before or an determine the weight and size re- lifting carrying object, by to such things as marked informa- fening tags, shipping data, labels, tion, or manuals. Use power hoists or other mechanical lifting and canying equipment for or hard to handle objects. Use methods recom- heavy, bulky, hookup mended your department and know the signals for di- by safety safely recting a crane operator. Never place any part of your body under a suspended load or move a suspended load over any part of another person's body. Before lifting, be certain that you have a safe spot for depositing the load. Never work on a component while itis from a crane or other mecha- hanging lifting nism. Always inspect slings, chains, hoists, and other lifting devices prior to use. Do not use lifting devices found to be defective or questionable. . Never exceed the rated of eye- safety capacity cranes, hoists, slings, and other equipment. Follow standards and instructions ap- bolts, lifting plicable to any liftingequipment you use. (For example, ANSI Standard B18.15, available from The American National Standards Institute, inc, 1430 New New York contains information con- Broadway, York, 10018, coming safe liftingloads for different size eyebolts, for various angles of liftand application instructions for safe use of eyebolts.) 13 of 32 Pace 2 FILED: KINGS COUNTY CLERK 04/12/2021 04:53 PM INDEX NO. 523006/2020 NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 04/12/2021 Keep all parts of your body off the machine table, table edge, out of the WARNING path of moving units, tripdogs, trip plungers, and out of the areas workiñÿ during operation. Never lean on a machine or reach over or through a follow instruc• Failure to machiñe - you can become entangled in tooliñg and other moving re- tions on this page may elements or you activate start may accideñtally buttons, feed controls, serious personal in- suit in rapid traverse power work controls, holding control, or similar devices. jury. .. . __ ...... __. During operation, be attentive to the machining process. Excessive vibration, unusual sounds, etc., can indicate problems requiring your immediate attention. Watch for conditions such as packed chips or grit which can cause breakage of tooling or machine elements. Shut off power to the machine when leaving the operating area or at the end of your work period. Never leave the machine running unattended, unless machine is part of an unattended manufacturing system and in a production cycle. Tum the master disconnect device to the OFF posi- tion before cleaning the machine at the end of the working day or when guards or covers are removed that expose hazardous areas.