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FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018
NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------X
ANTONIO ESPINOSA, Index No.: 515277/2018
Plaintiff, AMENDED SUPPLEMENTAL
RESPONSES TO PLAINTIFF’S
- against - NOTICE TO PRODUCE & DISCLOSE
& RESPONSES TO FCP ORDER
MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC.,
Defendants.
---------------------------------------------------------------X
MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC.
Third-Party Plaintiffs
-against-
GILMAR DESGIN CORPORATION,
Third-Party Defendant.
---------------------------------------------------------------X
PLEASE TAKE NOTICE that defendants, MAC 60 LLC and ROYAL HOME
IMPROVEMENTS INC., by and through their attorneys, KIERNAN TREBACH LLP, sets forth
the following as and for their Amended and Supplemental Responses to Plaintiff’s Notice to
Produce and Disclose dated December 28, 2018; May 21, 2021; and the Amended FCP Order
dated November 5, 2021, upon information and belief, as follows:
GENERAL OBJECTIONS
1. The following general objections apply to and are incorporated by reference into
each specific response. The responding defendants/third-party plaintiffs reserve the right to
assert additional and different objections in any supplemental response and at any other time
hereafter deemed appropriate. Moreover, in each instance in which the responding
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defendants/third-party plaintiffs object specifically to a request, such objection is in addition to,
and not in limitation of, the responding defendants/third-party plaintiffs’ general objections.
2. The responding defendants/third-party plaintiffs submit this response without
conceding the relevancy or materiality of the subject matter of any request and without prejudice
to all objections to the use, further production, or admissibility of the documents produced
herein.
3. Documents responsive to more than one request will be made available for
inspection and copying and produced only once.
4. No admissions of any nature are implied or should be inferred from the
defendants/third-party plaintiffs’ responses. The production of documents shall not constitute a
waiver of any applicable objection.
5. Each response and objection to each request is based on the responding
defendants/third-party plaintiffs’ understanding of the request. To the extent that the responding
defendants/third-party plaintiffs’ interpretation that is inconsistent with the responding
defendants/third-party plaintiffs’ understanding, the defendants/third-party plaintiffs reserve the
right to supplement or amend their responses and objections.
6. The responding defendants/third-party plaintiffs objects to the plaintiff’s demands
in their entirety to the extent that they call for: (a) information that embodies or discloses
confidential communications between the responding defendants/third-party plaintiffs and their
attorneys; (b) information that represents the work product of attorneys for the defendants/third-
party plaintiffs or that otherwise reflects the mental impressions, conclusions, opinions or legal
theories of those attorneys or their agents; (c) information that has been compiled in anticipation
of litigation by or on behalf of the responding defendants/third-party plaintiffs or its attorneys;
and/or (d) information protected from disclosure by any other privilege recognized by law.
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7. Any inadvertent production of any privileged document shall not be deemed or
construed to constitute a waiver by the responding defendants/third-party plaintiffs of such
privilege, and the responding defendants/third-party plaintiffs expressly reserves the right to
demand that the plaintiff returns any inadvertently produced document and all copies thereof
and/or to seek a protective order from the Court.
8. The responding defendants/third-party plaintiffs objects to the plaintiff’s requests
in their entirety to the extent that they seek information and/or production of documents not
available to the defendants/third-party plaintiffs and/or otherwise readily available to the
plaintiff.
9. The responding defendants/third-party plaintiffs object to the plaintiff’s requests
in their entirety to the extent that they are vague, ambiguous and/or incomprehensible; otherwise
lack precision; and/or require the defendants/third-party plaintiffs to engage in conjecture as to
its meaning.
10. The responding defendants/third-party plaintiffs objects to the plaintiff’s requests
in their entirety to the extent that they are oppressive, unnecessarily burdensome, and/or overly
broad.
11. The responding defendants/third-party plaintiffs objects to those requests that are
duplicative or cumulative and as to which information may be obtained from another source with
more convenience, less burden and/or less expense.
12. The responding defendants/third-party plaintiffs objects to plaintiff’s requests in
their entirety to the extent that they seek information and/or production of documents not
relevant to the subject matter of the pending action and/or not reasonably calculated to lead to the
discovery of admissible evidence.
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13. The responding defendants/third-party plaintiffs object to plaintiff’s requests in
their entirety to the extent that they prematurely seek an opinion or contention or the application
of law to fact, and, therefore, need not be answered until discovery has been completed.
14. The responding defendants/third-party plaintiffs object to each definition,
instruction, and specific request to the extent that it seeks to impose an obligation(s) on the
defendants/third-party plaintiffs beyond the scope of, or not contemplated by, applicable law and
rules.
15. The responding defendants/third-party plaintiffs object to plaintiff’s requests in
their entirety to the extent that they call for non-discoverable matters.
16. The responding defendants/third-party plaintiffs reserve the right to supplement
their responses should additional responsive documents be discovered.
17. All parties to this action are hereby advised that the documents produced hereto
shall be used solely in connection with this litigation, may contain confidential and proprietary
information, and are produced on the condition that the parties agree that the documents may not
be disclosed to outside parties without the defendants/third-party plaintiffs’ express written
permission or used for any purpose other than this litigation.
SPECIFIC OBJECTIONS AND RESPONSES
STATEMENTS:
1. The responding defendants/third-party plaintiffs are not in possession of any
adverse party statements responsive to this demand.
WITNESSES:
2. (a) Upon information and belief, the only witness to plaintiff’s accident was
third-party defendant Gilmar Design Corporation’s foreman, “Abrik.” The request for witness
information is more properly directed to third-party defendant Gilmar Design Corporation.
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(b) – (f) The responding defendants/third-party plaintiffs are not in possession of
any information responsive to this demand.
PHOTOGRAPHS:
3. (a)-(d) The responding defendants/third-party plaintiffs are not in possession of
Photographs responsive to this demand other than those that may have been provided by
plaintiff.
SAFETY MATERIALS:
4. (a) The responding defendants object to this demand as it is overly broad,
vague, ambiguous, irrelevant, and not sufficiently limited in scope. Subject to, and without
waiving any objections, the responding defendants/third-party plaintiffs’ Site Specific Safety
Plan for subcontractors, which was provided to plaintiff’s employer, third-party defendant
Gilmar Design Corporation, is attached hereto as Exhibit A.
(b) – (g) The responding defendants/third-party plaintiffs are not in possession of
any information responsive to these demands. These requests are more properly directed to third-
party defendant Gilmar Design Corporation.
ENTITY DOCUMENTS & INFORMATION:
5. (a) – (b) The responding defendants/third-party plaintiffs object to this demand as
irrelevant, beyond the permissible scope of discovery and not reasonably calculated to lead to the
discovery of admissible evidence. Moreover, entity documents, such as Articles of Incorporation,
deeds, etc. are public record readily available to the plaintiff. Responding defendants/third-party
plaintiffs object to all requests for entity documents that are not publicly available to plaintiff as
privileged and confidential.
EMPLOYMENT FILE:
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6. The responding defendants/third-party plaintiffs are not in possession of an
employment file responsive to this demand. Plaintiff was employed by third-party defendant
Gilmar Design Corporation. Therefore, requests for plaintiff employment files and information
are more properly directed to third-party defendant Gilmar Design Corporation.
VIDEO TAPES and PHOTOGRAPHS OF THE PLAINTIFF:
7. The responding defendants/third-party plaintiffs are not in possession of any
video tapes or photographs responsive to this demand other than the photographs provided by
plaintiff.
INSURANCE INFORMATION:
8. At the time of the subject incident, ROYAL HOME IMPROVEMENTS, INC.
was insured by Colony Insurance Company under policy number 103GL00781904 with effective
dates of January 1, 2017 through January 1, 2018 and policy limits of $1,000,000 per occurrence
and $2,000,000 in the general aggregate. ROYAL HOME IMPROVEMENTS, INC. is also
insured by Colony Insurance Company under an umbrella liability policy bearing policy number
AR3461860, with the same effective dates and policy limits of $5,000,000 per occurrence
(excess of underlying insurance) and $5,000,000 in the general aggregate. Upon information and
belief, defendant MAC 60 LLC is being defended and indemnified as an additional insured under
the policies issued to ROYAL HOME IMPROVEMENTS, INC.
ACCIDENT REPORTS:
9. The responding defendants/third-party plaintiffs are not presently in possession of
any accident reports responsive to this demand. Requests for accident reports is more properly
directed to third-party defendant Gilmar Design Corporation.
CONTRACTS & INFORMATION:
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10. The responding defendants/third-party plaintiffs object to this demand as it is
overly broad, vague, ambiguous, irrelevant, and not sufficiently limited in scope.
Notwithstanding these objections, attached hereto as Exhibit B are the contract and Consensus
Documents between MAC 60 LLC and Royal Home Improvements. Third-party defendant
Gilmar Design Corporation’s original one (1) page handwritten bid proposal/contract for
$700,000.00 for labor, materials, and scope of work to be performed by Gilmar, as well as its
subsequent addition/modification to its original contract, consisting of typed June 29, 2017
Proposal 062917 for $100,000.00 are attached hereto as Exhibit C.
11. The responding defendants/third-party plaintiffs object to this demand as it is
overly broad, vague, ambiguous, irrelevant, and not sufficiently limited in scope.
Notwithstanding these objections, see response to paragraph (10).
EXPERT INFORMATION
12. (a) – (d) The responding defendants/third-party plaintiffs’ medical experts were
previously noticed and disclosed. Any additional experts and expert reports shall be disclosed
and/or exchanged pursuant to the terms of the CPLR.
DEMANDS FOR ADDRESSES OF PARTIES:
13. Not applicable.
INDEPENDENT CONTRACTOR INFORMATION:
14. The responding defendants/third-party plaintiffs object to this demand as it is
overly broad, vague, ambiguous, irrelevant, and not sufficiently limited in scope.
Notwithstanding these objections, see response to paragraph (10).
MANAGING AGENT INFORMATION:
15. Upon information and belief, there was not a “managing agent” for the building on
the date of the alleged accident.
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PLEASE TAKE FURTHER NOTICE that responding defendants/third-party
plaintiffs’ hereby reserves its right to supplement and/or amend this response as discovery
proceeds, up to and including the time of trial.
Dated: Garden City, New York
February 21, 2022
KIERNAN TREBACH LLP
By: _____________________________________
Afaf “Faye” Sulieman, Esq.
Attorneys for Defendants/Third Party Plaintiffs
MAC 60 LLC and ROYAL HOME
IMPROVEMENTS, INC.
1305 Franklin Avenue, Suite 301
Garden City, New York 11530
Tel: (516) 831-0200
Fax: (516) 831-0201
KT File No.: 1989.0016
TO: Via E-Mail & NYSCEF E-Filing
Steven Labell, Esq. SLabell@oreskylaw.com
ORESKY & ASSOCIATES, PLLC
Attorneys for Plaintiff
149 East 149th Street
Bronx, NY 10451
(718) 993-9999
File No.: 18-1005
Richard B. Polner, Esq. rpolner@rawle.com
Pauline Ianno, Paralegal pianno@rawle.com
RAWLE & HENDERSON LLP
Attorneys for Third-Party Defendant
GILMAR DESIGN CORPORATION
14 Wall Street, 27th Floor
New York, New York 10005-2101
File No.: 805030
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EXHIBIT A
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 1
60 Th Street McDonald ave
SECTION 1 - PROJECT DESCRIPTION & EMERGENCY CONTACTS
Subcontract / Purchase Order
Number
Project Start / End Dates Start: 2/6/17 Complete: 12/22/17
Project Location 60th street McDonald ave
General Scope of Work, New commercial construction
Project Description
FOR ALL EMERGENCIES CALL:
Emergency Contact number: 7911 - or - (510-486-7911) or 911 from a cell phone.
For all incidents, injuries, property damage, near-misses, work-induced illness or chemical over-exposures, the following
personnel MUST be immediately contacted upon scene stabilization, but in all cases within one hour:
Project Personnel Name Phone Number(s) Email
Project Manager Timothy McCarthy 516.787.2668 Tim@royalbuildersn
y.com
Construction Manager Royal Builders 718.677.5641 Info@royalbuilders
y.com
Project EHS Point of Contact
OTHER CONTACT INFORMATION
Subcontractor Project Manager
Subcontractor Site Timothy Mccarthy
Superintendent
Subcontractor Health & Safety
Representative **
Subcontractors - Company Name Name of Designated Safety Representative ** Phone Number
Paul tooth excavations Paul tooth Na
TBD TBD
** Attach a description of qualifications, or resume, for each Safety Representative per Section 9.0 plan attachments.
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 1
SSSP REVIEWS
Reviewed & Approved by: Subcontractor SSSP Subcontractor SSSP Reviewed &
(Subcontracted Company Officer) Reviewed by: (LBNL EHS ) Accepted by:
(LBNL Project/Construction Manager)
Tm Tm
Tm
Signatures and dates
SECTION 2 - SUBCONTRACTOR POLICY STATEMENT
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 1
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 1
SECTION 3 - ACKNOWLEDGMENT of 10 CFR 851
As a subcontractor to LBNL, while your workers are physically located at LBNL, you must meet the requirements of Title 10, Code of
Federal Regulations, “Energy”, Part 851, “Worker Safety and Health Program” (10 CFR 851). As such, you must be aware of, and comply
with, the requirements of this regulation.
(Link to 10 CFR 851)
Acknowledgment signature I__________________________________, certify that that I have read Yes No
the requirements of 10 CFR 851 and attest that my firm and its sub-tier
contractors will comply with the requirements of 10 CFR 851.
__________________________
MEDICAL SURVEILLANCE AND QUALIFICATION
Occupational Medicine Will you have any employees that will work on-site at
for 30, eight-hour days in a Yes No
12-month period, or are enrolled for any length of time in a medical or exposure
monitoring program required by federal, state, or local regulations (including
hearing conservation, respiratory protection, lead exposure)?
If yes, you will need to:
1. Provide your occupational medicine provider contact information
Clinic / Physician
Required Medical Surveillance Task-specific medical testing
DOT/Commercial Vehicle Blood Lead
Hearing Conservation Respirator User
Fit For Duty Other(s) :List other(s)
Substance Abuse Testing
SECTION 4 - SAFETY BRIEFINGS AND INSPECTIONS
Safety Briefings location, time, frequency:
Documented Safety Inspections conducted by:
Documented Safety Inspection frequency:
Refer to PUB 3000 Chapter 10 work process for additional information.
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 2
SECTION 5 – PROJECT CHARACTERIZATION
Identify the project’s Definable Work Activities.
(e.g., mobilization, excavations, concrete, structural steel erection, dry-walling, electrical install, painting, roofing, landscaping, etc.)
Excavation of earth , underpinning of adjoining buildings , construction of foundation wall , erection of structural Steele
Drywall , electrical , elevator , plumbing , LV ,roof , masonary façade widow and panel installation etc. refer to
drawings
Anticipated Start Date
Check all of the hazards/activities below that apply to this Project. Refer to the PUB 3000 Construction Safety Requirements
Manual for -specified controls.
PUB 3000 Attach copy of
Chapter 10 LBL- Subcontractor
construction issued Program or
Yes No Hazard/Activity with specific -based control measures.
requirements Permit Project Plan
manual unless required addressing this
noted activity
17,Pub 3000
Chapter
Asbestos use, alteration, removal or storage
4,Master Spec
028200
(Identify your Competent Person for Asbestos Work here)
11.3.6,
Blocking Exits or Exit Pathways
11.3.11
Surface Penetration 40.0
Confined spaces 39.0
Crane Use 12
(Identify your Lift Supervisor here)
Discharges to sanitary/septic system will occur 41
Energized electrical work (>50 v or > 50 mA) 9.3.2.2
Excavation 10
(Identify your Competent Person for Excavations here)
Earth disturbance of greater than one acre (notice of intent) 41
Falls from elevation (work at heights > 6 feet) 14
(Identify your Competent Person for Fall Protection here)
Fire protection 11
Flushing of waterlines, storm/sanitary lines, fire suppression systems or fire
hydrants will be performed
41
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 2
Hazardous Waste Storage or generation on construction site ✓
Attach copy of
PUB 3000 LBL-
Subcontractor
construction issued
Yes No Hazard/Activity with specific -based control measures. Program
requirements Permit
addressing this
manual required
activity
Hoisting/Rigging 12 ✓
(Identify your Hoisting/Rigging Competent Person here)
Hot work 11 ✓ ✓
Lasers. (Class 3B and 4) 16.3.9 ✓ ✓
Lead concerns 24 ✓
(Identify your Competent Person for Lead work here)
Lockout/Tagout (Control of Hazardous Energy) 8 ✓
Night work
Outdoor work to be performed between mid-March and mid-September 41
Silica Concerns 26
Radioactive materials or Ionizing radiation-generating devices 27.3
(Identify your Radiation Safety Officer here)
Scaffolding 43 ✓
(Identify your Scaffolding Competent Person here)
Structural Steel Erection 14 ✓
Traffic Control 6 ✓
Underground Construction 10 ✓
Wetlands, drainage channels, streams, groundwater seeps occur within
construction site
41
SECTION 6 - PROJECT SUPPORT FEATURES, SITE CONTROL & LOGISTICS
Check all of the following facilities and equipment that are required for safe completion of work.
Facility/Equipment Description
Project Office
Materials Receiving Location
Portable Restrooms/wash stations
Supplementary Illumination
Emergency Eyewash/Shower
First Aid Supplies
Fire Extinguishers
Hazardous Material Storage
Spill Containment/Clean-up
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 2
Other:
Other:
Site Control / Logistics
Task / Location Specify your task-specific site control/access control measures below.
Check here if you are ALSO attaching a Logistics Plan for your activities.
Logistics Plan is attached in Appendix #___
SECTION 7 – REQUIRED TRAINING/QUALIFICATIONS
Training Records Location:
Office / staging area for royal Builders
Identify the activities involved on your project which have OSHA-required training:
Yes No
Asbestos activities
Aerial Lift Operation
Crane Operation (minimum NCCCO certification for operator)
Confined Space Entry
Electrical Workrequiring NFPA 70E provisions
Electrical Workrequiring CPR-trained 2nd worker
Excavation
Fall Protection Equipment
Forklift Operation/Powered Industrial Truck Use
Heavy Equipment Operation
:
Ladder Use
Lock-Out/Tag-Out
Noisy Operations requiring Hearing Conservation training
Scaffolding Erection, Use
Respirator use
Powdered Actuated Tool (PAT)
Required LBNL site specific training
GERT
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 2
Construction Orientation
SECTION 8 - HAZARD COMMUNICATION (HAZCOM)
SDS Location:
Method of notifying employees:
Refer to the PUB 3000 work process Z for additional information.
SECTION 9 - PLAN ATTACHMENTS
For each activity or hazard checked in Section 5, list and attach your additional corporate, site- or project-specific programs/plans.
Attachment Reference Procedure or Program
1 Project safety representative, Statement of Qualifications for:
#
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SITE SPECIFIC SAFETY PLAN (SSSP) PART 3
PART 3 – ACTIVITY HAZARD ANALYSES
Complete an Job Hazard Analysis for each of your project’s Definable Construction Activities
Refer to the PUB 3000 Chapter 10 work process for additional information.
Note: A completed, signed JHA must be submitted to EHS for review prior to the start of each
phase of work, in order to proceed with that phase.
JHA Tracking Table
(use is non-mandatory unless required by EHS contact)
Responsible
1 JHA Submittal Date Date JHA accepted by
subcontractor
Enter Activity
2
Anticipated Start Date
Enter Activity
3
Anticipated Start Date
Enter Activity
4
Anticipated Start Date
Enter Activity
5
Anticipated Start Date
Enter Activity
6
Anticipated Start Date
etc (Add others as necessary)
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JOB HAZARD ANALYSIS
JHA #:
Project name 60th street Task name
Job Hazard Analysis REVIEWS
Reviewed & Approved by: (Subcontractor Project Reviewed & Approved by: Subcontractor Project Reviewed & Approved by: Subcontractor Safety
Manager) Superintendent) Officer
Enter name of Subcontractor: Project Superintendent Enter name of Subcontractor- Safety Officer
Signature and date
Signature and date Signature and date
All signature blocks completed indicate authorization to perform only the identified Activity’s.
Drawings Attached: Yes No
Definable Work Activity: Enter Activity Title Revision: Enter revison number or Date
Control Measure(s), Required Training, -required Permits or Plans,
Work Task Potential Hazard(s)
and Competent Person(s)
JHA REVIEW/PRE-JOB BRIEF ATTENDANCE ROSTER
By signing below, I agree to the following:
▪ I agree to follow the work steps and implement the controls as written.
▪ I agree to stop work when conditions or hazards change or when I encounter unexpected conditions during the execution of work, or when work cannot be performed as written, or
instructions become unclear during execution.
▪ I confirm that I am authorized, qualified and fit to perform the work.
Worker (Print /Sign / Date) Worker (Print /Sign / Date)
Worker (Print /Sign / Date) Worker (Print /Sign /
Preview
FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------X ANTONIO ESPINOSA, Index No.: 515277/2018 Plaintiff, AMENDED SUPPLEMENTAL RESPONSES TO PLAINTIFF’S - against - NOTICE TO PRODUCE & DISCLOSE & RESPONSES TO FCP ORDER MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC., Defendants. ---------------------------------------------------------------X MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. Third-Party Plaintiffs -against- GILMAR DESGIN CORPORATION, Third-Party Defendant. ---------------------------------------------------------------X PLEASE TAKE NOTICE that defendants, MAC 60 LLC and ROYAL HOME IMPROVEMENTS INC., by and through their attorneys, KIERNAN TREBACH LLP, sets forth the following as and for their Amended and Supplemental Responses to Plaintiff’s Notice to Produce and Disclose dated December 28, 2018; May 21, 2021; and the Amended FCP Order dated November 5, 2021, upon information and belief, as follows: GENERAL OBJECTIONS 1. The following general objections apply to and are incorporated by reference into each specific response. The responding defendants/third-party plaintiffs reserve the right to assert additional and different objections in any supplemental response and at any other time hereafter deemed appropriate. Moreover, in each instance in which the responding 1 1 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 defendants/third-party plaintiffs object specifically to a request, such objection is in addition to, and not in limitation of, the responding defendants/third-party plaintiffs’ general objections. 2. The responding defendants/third-party plaintiffs submit this response without conceding the relevancy or materiality of the subject matter of any request and without prejudice to all objections to the use, further production, or admissibility of the documents produced herein. 3. Documents responsive to more than one request will be made available for inspection and copying and produced only once. 4. No admissions of any nature are implied or should be inferred from the defendants/third-party plaintiffs’ responses. The production of documents shall not constitute a waiver of any applicable objection. 5. Each response and objection to each request is based on the responding defendants/third-party plaintiffs’ understanding of the request. To the extent that the responding defendants/third-party plaintiffs’ interpretation that is inconsistent with the responding defendants/third-party plaintiffs’ understanding, the defendants/third-party plaintiffs reserve the right to supplement or amend their responses and objections. 6. The responding defendants/third-party plaintiffs objects to the plaintiff’s demands in their entirety to the extent that they call for: (a) information that embodies or discloses confidential communications between the responding defendants/third-party plaintiffs and their attorneys; (b) information that represents the work product of attorneys for the defendants/third- party plaintiffs or that otherwise reflects the mental impressions, conclusions, opinions or legal theories of those attorneys or their agents; (c) information that has been compiled in anticipation of litigation by or on behalf of the responding defendants/third-party plaintiffs or its attorneys; and/or (d) information protected from disclosure by any other privilege recognized by law. 2 2 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 7. Any inadvertent production of any privileged document shall not be deemed or construed to constitute a waiver by the responding defendants/third-party plaintiffs of such privilege, and the responding defendants/third-party plaintiffs expressly reserves the right to demand that the plaintiff returns any inadvertently produced document and all copies thereof and/or to seek a protective order from the Court. 8. The responding defendants/third-party plaintiffs objects to the plaintiff’s requests in their entirety to the extent that they seek information and/or production of documents not available to the defendants/third-party plaintiffs and/or otherwise readily available to the plaintiff. 9. The responding defendants/third-party plaintiffs object to the plaintiff’s requests in their entirety to the extent that they are vague, ambiguous and/or incomprehensible; otherwise lack precision; and/or require the defendants/third-party plaintiffs to engage in conjecture as to its meaning. 10. The responding defendants/third-party plaintiffs objects to the plaintiff’s requests in their entirety to the extent that they are oppressive, unnecessarily burdensome, and/or overly broad. 11. The responding defendants/third-party plaintiffs objects to those requests that are duplicative or cumulative and as to which information may be obtained from another source with more convenience, less burden and/or less expense. 12. The responding defendants/third-party plaintiffs objects to plaintiff’s requests in their entirety to the extent that they seek information and/or production of documents not relevant to the subject matter of the pending action and/or not reasonably calculated to lead to the discovery of admissible evidence. 3 3 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 13. The responding defendants/third-party plaintiffs object to plaintiff’s requests in their entirety to the extent that they prematurely seek an opinion or contention or the application of law to fact, and, therefore, need not be answered until discovery has been completed. 14. The responding defendants/third-party plaintiffs object to each definition, instruction, and specific request to the extent that it seeks to impose an obligation(s) on the defendants/third-party plaintiffs beyond the scope of, or not contemplated by, applicable law and rules. 15. The responding defendants/third-party plaintiffs object to plaintiff’s requests in their entirety to the extent that they call for non-discoverable matters. 16. The responding defendants/third-party plaintiffs reserve the right to supplement their responses should additional responsive documents be discovered. 17. All parties to this action are hereby advised that the documents produced hereto shall be used solely in connection with this litigation, may contain confidential and proprietary information, and are produced on the condition that the parties agree that the documents may not be disclosed to outside parties without the defendants/third-party plaintiffs’ express written permission or used for any purpose other than this litigation. SPECIFIC OBJECTIONS AND RESPONSES STATEMENTS: 1. The responding defendants/third-party plaintiffs are not in possession of any adverse party statements responsive to this demand. WITNESSES: 2. (a) Upon information and belief, the only witness to plaintiff’s accident was third-party defendant Gilmar Design Corporation’s foreman, “Abrik.” The request for witness information is more properly directed to third-party defendant Gilmar Design Corporation. 4 4 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 (b) – (f) The responding defendants/third-party plaintiffs are not in possession of any information responsive to this demand. PHOTOGRAPHS: 3. (a)-(d) The responding defendants/third-party plaintiffs are not in possession of Photographs responsive to this demand other than those that may have been provided by plaintiff. SAFETY MATERIALS: 4. (a) The responding defendants object to this demand as it is overly broad, vague, ambiguous, irrelevant, and not sufficiently limited in scope. Subject to, and without waiving any objections, the responding defendants/third-party plaintiffs’ Site Specific Safety Plan for subcontractors, which was provided to plaintiff’s employer, third-party defendant Gilmar Design Corporation, is attached hereto as Exhibit A. (b) – (g) The responding defendants/third-party plaintiffs are not in possession of any information responsive to these demands. These requests are more properly directed to third- party defendant Gilmar Design Corporation. ENTITY DOCUMENTS & INFORMATION: 5. (a) – (b) The responding defendants/third-party plaintiffs object to this demand as irrelevant, beyond the permissible scope of discovery and not reasonably calculated to lead to the discovery of admissible evidence. Moreover, entity documents, such as Articles of Incorporation, deeds, etc. are public record readily available to the plaintiff. Responding defendants/third-party plaintiffs object to all requests for entity documents that are not publicly available to plaintiff as privileged and confidential. EMPLOYMENT FILE: 5 5 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 6. The responding defendants/third-party plaintiffs are not in possession of an employment file responsive to this demand. Plaintiff was employed by third-party defendant Gilmar Design Corporation. Therefore, requests for plaintiff employment files and information are more properly directed to third-party defendant Gilmar Design Corporation. VIDEO TAPES and PHOTOGRAPHS OF THE PLAINTIFF: 7. The responding defendants/third-party plaintiffs are not in possession of any video tapes or photographs responsive to this demand other than the photographs provided by plaintiff. INSURANCE INFORMATION: 8. At the time of the subject incident, ROYAL HOME IMPROVEMENTS, INC. was insured by Colony Insurance Company under policy number 103GL00781904 with effective dates of January 1, 2017 through January 1, 2018 and policy limits of $1,000,000 per occurrence and $2,000,000 in the general aggregate. ROYAL HOME IMPROVEMENTS, INC. is also insured by Colony Insurance Company under an umbrella liability policy bearing policy number AR3461860, with the same effective dates and policy limits of $5,000,000 per occurrence (excess of underlying insurance) and $5,000,000 in the general aggregate. Upon information and belief, defendant MAC 60 LLC is being defended and indemnified as an additional insured under the policies issued to ROYAL HOME IMPROVEMENTS, INC. ACCIDENT REPORTS: 9. The responding defendants/third-party plaintiffs are not presently in possession of any accident reports responsive to this demand. Requests for accident reports is more properly directed to third-party defendant Gilmar Design Corporation. CONTRACTS & INFORMATION: 6 6 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 10. The responding defendants/third-party plaintiffs object to this demand as it is overly broad, vague, ambiguous, irrelevant, and not sufficiently limited in scope. Notwithstanding these objections, attached hereto as Exhibit B are the contract and Consensus Documents between MAC 60 LLC and Royal Home Improvements. Third-party defendant Gilmar Design Corporation’s original one (1) page handwritten bid proposal/contract for $700,000.00 for labor, materials, and scope of work to be performed by Gilmar, as well as its subsequent addition/modification to its original contract, consisting of typed June 29, 2017 Proposal 062917 for $100,000.00 are attached hereto as Exhibit C. 11. The responding defendants/third-party plaintiffs object to this demand as it is overly broad, vague, ambiguous, irrelevant, and not sufficiently limited in scope. Notwithstanding these objections, see response to paragraph (10). EXPERT INFORMATION 12. (a) – (d) The responding defendants/third-party plaintiffs’ medical experts were previously noticed and disclosed. Any additional experts and expert reports shall be disclosed and/or exchanged pursuant to the terms of the CPLR. DEMANDS FOR ADDRESSES OF PARTIES: 13. Not applicable. INDEPENDENT CONTRACTOR INFORMATION: 14. The responding defendants/third-party plaintiffs object to this demand as it is overly broad, vague, ambiguous, irrelevant, and not sufficiently limited in scope. Notwithstanding these objections, see response to paragraph (10). MANAGING AGENT INFORMATION: 15. Upon information and belief, there was not a “managing agent” for the building on the date of the alleged accident. 7 7 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 PLEASE TAKE FURTHER NOTICE that responding defendants/third-party plaintiffs’ hereby reserves its right to supplement and/or amend this response as discovery proceeds, up to and including the time of trial. Dated: Garden City, New York February 21, 2022 KIERNAN TREBACH LLP By: _____________________________________ Afaf “Faye” Sulieman, Esq. Attorneys for Defendants/Third Party Plaintiffs MAC 60 LLC and ROYAL HOME IMPROVEMENTS, INC. 1305 Franklin Avenue, Suite 301 Garden City, New York 11530 Tel: (516) 831-0200 Fax: (516) 831-0201 KT File No.: 1989.0016 TO: Via E-Mail & NYSCEF E-Filing Steven Labell, Esq. SLabell@oreskylaw.com ORESKY & ASSOCIATES, PLLC Attorneys for Plaintiff 149 East 149th Street Bronx, NY 10451 (718) 993-9999 File No.: 18-1005 Richard B. Polner, Esq. rpolner@rawle.com Pauline Ianno, Paralegal pianno@rawle.com RAWLE & HENDERSON LLP Attorneys for Third-Party Defendant GILMAR DESIGN CORPORATION 14 Wall Street, 27th Floor New York, New York 10005-2101 File No.: 805030 8 8 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 EXHIBIT A 9 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 1 60 Th Street McDonald ave SECTION 1 - PROJECT DESCRIPTION & EMERGENCY CONTACTS Subcontract / Purchase Order Number Project Start / End Dates Start: 2/6/17 Complete: 12/22/17 Project Location 60th street McDonald ave General Scope of Work, New commercial construction Project Description FOR ALL EMERGENCIES CALL: Emergency Contact number: 7911 - or - (510-486-7911) or 911 from a cell phone. For all incidents, injuries, property damage, near-misses, work-induced illness or chemical over-exposures, the following personnel MUST be immediately contacted upon scene stabilization, but in all cases within one hour: Project Personnel Name Phone Number(s) Email Project Manager Timothy McCarthy 516.787.2668 Tim@royalbuildersn y.com Construction Manager Royal Builders 718.677.5641 Info@royalbuilders y.com Project EHS Point of Contact OTHER CONTACT INFORMATION Subcontractor Project Manager Subcontractor Site Timothy Mccarthy Superintendent Subcontractor Health & Safety Representative ** Subcontractors - Company Name Name of Designated Safety Representative ** Phone Number Paul tooth excavations Paul tooth Na TBD TBD ** Attach a description of qualifications, or resume, for each Safety Representative per Section 9.0 plan attachments. 5/12/15 10 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 1 SSSP REVIEWS Reviewed & Approved by: Subcontractor SSSP Subcontractor SSSP Reviewed & (Subcontracted Company Officer) Reviewed by: (LBNL EHS ) Accepted by: (LBNL Project/Construction Manager) Tm Tm Tm Signatures and dates SECTION 2 - SUBCONTRACTOR POLICY STATEMENT 5/12/15 11 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 1 5/12/15 12 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 1 SECTION 3 - ACKNOWLEDGMENT of 10 CFR 851 As a subcontractor to LBNL, while your workers are physically located at LBNL, you must meet the requirements of Title 10, Code of Federal Regulations, “Energy”, Part 851, “Worker Safety and Health Program” (10 CFR 851). As such, you must be aware of, and comply with, the requirements of this regulation. (Link to 10 CFR 851) Acknowledgment signature I__________________________________, certify that that I have read Yes No the requirements of 10 CFR 851 and attest that my firm and its sub-tier contractors will comply with the requirements of 10 CFR 851. __________________________ MEDICAL SURVEILLANCE AND QUALIFICATION Occupational Medicine Will you have any employees that will work on-site at for 30, eight-hour days in a Yes No 12-month period, or are enrolled for any length of time in a medical or exposure monitoring program required by federal, state, or local regulations (including hearing conservation, respiratory protection, lead exposure)? If yes, you will need to: 1. Provide your occupational medicine provider contact information Clinic / Physician Required Medical Surveillance Task-specific medical testing DOT/Commercial Vehicle Blood Lead Hearing Conservation Respirator User Fit For Duty Other(s) :List other(s) Substance Abuse Testing SECTION 4 - SAFETY BRIEFINGS AND INSPECTIONS Safety Briefings location, time, frequency: Documented Safety Inspections conducted by: Documented Safety Inspection frequency: Refer to PUB 3000 Chapter 10 work process for additional information. 5/12/15 13 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 2 SECTION 5 – PROJECT CHARACTERIZATION Identify the project’s Definable Work Activities. (e.g., mobilization, excavations, concrete, structural steel erection, dry-walling, electrical install, painting, roofing, landscaping, etc.) Excavation of earth , underpinning of adjoining buildings , construction of foundation wall , erection of structural Steele Drywall , electrical , elevator , plumbing , LV ,roof , masonary façade widow and panel installation etc. refer to drawings Anticipated Start Date Check all of the hazards/activities below that apply to this Project. Refer to the PUB 3000 Construction Safety Requirements Manual for -specified controls. PUB 3000 Attach copy of Chapter 10 LBL- Subcontractor construction issued Program or Yes No Hazard/Activity with specific -based control measures. requirements Permit Project Plan manual unless required addressing this noted activity 17,Pub 3000 Chapter Asbestos use, alteration, removal or storage 4,Master Spec 028200 (Identify your Competent Person for Asbestos Work here) 11.3.6, Blocking Exits or Exit Pathways 11.3.11 Surface Penetration 40.0 Confined spaces 39.0 Crane Use 12 (Identify your Lift Supervisor here) Discharges to sanitary/septic system will occur 41 Energized electrical work (>50 v or > 50 mA) 9.3.2.2 Excavation 10 (Identify your Competent Person for Excavations here) Earth disturbance of greater than one acre (notice of intent) 41 Falls from elevation (work at heights > 6 feet) 14 (Identify your Competent Person for Fall Protection here) Fire protection 11 Flushing of waterlines, storm/sanitary lines, fire suppression systems or fire hydrants will be performed 41 5/12/15 14 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 2 Hazardous Waste Storage or generation on construction site ✓ Attach copy of PUB 3000 LBL- Subcontractor construction issued Yes No Hazard/Activity with specific -based control measures. Program requirements Permit addressing this manual required activity Hoisting/Rigging 12 ✓ (Identify your Hoisting/Rigging Competent Person here) Hot work 11 ✓ ✓ Lasers. (Class 3B and 4) 16.3.9 ✓ ✓ Lead concerns 24 ✓ (Identify your Competent Person for Lead work here) Lockout/Tagout (Control of Hazardous Energy) 8 ✓ Night work Outdoor work to be performed between mid-March and mid-September 41 Silica Concerns 26 Radioactive materials or Ionizing radiation-generating devices 27.3 (Identify your Radiation Safety Officer here) Scaffolding 43 ✓ (Identify your Scaffolding Competent Person here) Structural Steel Erection 14 ✓ Traffic Control 6 ✓ Underground Construction 10 ✓ Wetlands, drainage channels, streams, groundwater seeps occur within construction site 41 SECTION 6 - PROJECT SUPPORT FEATURES, SITE CONTROL & LOGISTICS Check all of the following facilities and equipment that are required for safe completion of work. Facility/Equipment Description Project Office Materials Receiving Location Portable Restrooms/wash stations Supplementary Illumination Emergency Eyewash/Shower First Aid Supplies Fire Extinguishers Hazardous Material Storage Spill Containment/Clean-up 5/12/15 15 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 2 Other: Other: Site Control / Logistics Task / Location Specify your task-specific site control/access control measures below. Check here if you are ALSO attaching a Logistics Plan for your activities. Logistics Plan is attached in Appendix #___ SECTION 7 – REQUIRED TRAINING/QUALIFICATIONS Training Records Location: Office / staging area for royal Builders Identify the activities involved on your project which have OSHA-required training: Yes No Asbestos activities Aerial Lift Operation Crane Operation (minimum NCCCO certification for operator) Confined Space Entry Electrical Workrequiring NFPA 70E provisions Electrical Workrequiring CPR-trained 2nd worker Excavation Fall Protection Equipment Forklift Operation/Powered Industrial Truck Use Heavy Equipment Operation : Ladder Use Lock-Out/Tag-Out Noisy Operations requiring Hearing Conservation training Scaffolding Erection, Use Respirator use Powdered Actuated Tool (PAT) Required LBNL site specific training GERT 5/12/15 16 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 2 Construction Orientation SECTION 8 - HAZARD COMMUNICATION (HAZCOM) SDS Location: Method of notifying employees: Refer to the PUB 3000 work process Z for additional information. SECTION 9 - PLAN ATTACHMENTS For each activity or hazard checked in Section 5, list and attach your additional corporate, site- or project-specific programs/plans. Attachment Reference Procedure or Program 1 Project safety representative, Statement of Qualifications for: # 5/12/15 17 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 SITE SPECIFIC SAFETY PLAN (SSSP) PART 3 PART 3 – ACTIVITY HAZARD ANALYSES Complete an Job Hazard Analysis for each of your project’s Definable Construction Activities Refer to the PUB 3000 Chapter 10 work process for additional information. Note: A completed, signed JHA must be submitted to EHS for review prior to the start of each phase of work, in order to proceed with that phase. JHA Tracking Table (use is non-mandatory unless required by EHS contact) Responsible 1 JHA Submittal Date Date JHA accepted by subcontractor Enter Activity 2 Anticipated Start Date Enter Activity 3 Anticipated Start Date Enter Activity 4 Anticipated Start Date Enter Activity 5 Anticipated Start Date Enter Activity 6 Anticipated Start Date etc (Add others as necessary) 5/12/15 18 of 53 FILED: KINGS COUNTY CLERK 02/21/2022 03:50 PM INDEX NO. 515277/2018 NYSCEF DOC. NO. 74 RECEIVED NYSCEF: 02/21/2022 JOB HAZARD ANALYSIS JHA #: Project name 60th street Task name Job Hazard Analysis REVIEWS Reviewed & Approved by: (Subcontractor Project Reviewed & Approved by: Subcontractor Project Reviewed & Approved by: Subcontractor Safety Manager) Superintendent) Officer Enter name of Subcontractor: Project Superintendent Enter name of Subcontractor- Safety Officer Signature and date Signature and date Signature and date All signature blocks completed indicate authorization to perform only the identified Activity’s. Drawings Attached: Yes No Definable Work Activity: Enter Activity Title Revision: Enter revison number or Date Control Measure(s), Required Training, -required Permits or Plans, Work Task Potential Hazard(s) and Competent Person(s) JHA REVIEW/PRE-JOB BRIEF ATTENDANCE ROSTER By signing below, I agree to the following: ▪ I agree to follow the work steps and implement the controls as written. ▪ I agree to stop work when conditions or hazards change or when I encounter unexpected conditions during the execution of work, or when work cannot be performed as written, or instructions become unclear during execution. ▪ I confirm that I am authorized, qualified and fit to perform the work. Worker (Print /Sign / Date) Worker (Print /Sign / Date) Worker (Print /Sign / Date) Worker (Print /Sign /