Preview
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
________________________________________________________ __X
ANKEEN MCGUIRE,
PLAINTIFF,
-against- Index No.1
504982/2016
THE CITY OF NEW YORK, THE NEW YORK CITY MUNICIPAL WATER
BOARD, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK
CITY DEPARTMENT OF SANITATION, KEYSPAN ENERGY DELIVERY
N. Y. C.
, KEYSPAN ENERGY CORPORATION, KEYSPAN CORPORATION,
KEYSPAN ENERGY SERVICES INC. , KEYSPAN GAS EAST CORPORATION,
KEYSPAN PLUMBING AND HEATING SERVICES, INC. , THE BROOKLYN
UNION GAS COMPANY and NATIONAL GRID USA SERVICE COMPANY,
DEFENDANTS.
________________________________________________________ __X
DATES April 4, 2018
TIMEz 10110 A.M.
EXAMINATION BEFORE TRIAL of the Plaintiff,
ANKEEN MCGUIRE, taken by the Defendants, pursuant to a
Court Order, held at the offices of the New York City Law
Department, 350 Jay Street, Brooklyn, New York 11201,
before Suzann R. Caputo, a Notary Public of the State of
New York.
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APPEARANCESZ
SALENGER, SACK, KIMMEL BAVARO, LLP
6.
Attorneys for the Plaintiff
ANKEBN MCGUIRE
180 Froehlich Farm Boulevard
Woodbury, New York 11797
BYz BENJAMIN SALK, ESQ., of Counsel
ZACHARY W. CARTER, ESQ.
CORPORATION COUNSEL
NEW YORK CITY LAW DEPARTMENT
Attorneys for the Defendants
THE CITY OF NEW YORK, THE NEW YORK CITY
MUNICIPAL WATER BOARD, NEW YORK CITY
DEPARTMENT OF TRANSPORTATION and
NEW YORK CITY DEPARTMENT OF SANITATION
100 Church Street
New York, New York 10007
BYz OM ALLADI, ESQ., of Counsel
File 492 2015-048102
Controlz 169465
O. CONNOR, CONNOR, HINTZ Q DEVENEY, LLP
OI
Attorneys for the Defendants
KEYSPAN ENERGY DELIVERY N. Y. C. ,
KEYSPAN ENERGY CORPORATION,
KEYSPAN CORPORATION, KEYSPAN ENERGY
SERVICES INC., KEYSPAN GAS EAST
CORPORATION, KEYSPAN PLUMBING AND HEATING
SERVICES, INC., THE BROOKLYN UNION GAS
COMPANY and NATIONAL GRID USA SERVICE COMPANY
One Huntington Quadrangle, Suite lCl0
Melville, New York 11747
BYz CHRISTOPHER LOCHNER, ESQ.
C1ochnerGoohdlaw. com
w up 90
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221. UNIFORM RULES FOR THE
CONDUCT OF DEPOSITIONS
221.1 Objections at Depositions
(a) Objections in general. No objections shall be made at a
deposition except those which, pursuant to subdivision (b),
(c) or (d) of Rule 3115 of the Civil Practice Law and
Rules, would be waived if not interposed, and except in
compliance with subdivision (e) of such rule. All
objections made at a deposition shall be noted by the
officer before whom the deposition is taken, and the answer
shall be given and the deposition shall proceed subject to
the objections and to the right of a person to apply for
appropriate relief pursuant to Article 31 of the CPLR
(b) Speaking objections restricted. Every objection raised
during a deposition shall be stated succinctly and framed
so as not to suggest an answer to the deponent and, at the
request of the questioning attorney, shall include a clear
statement as to any defect in form or other basis of error
or irregularity. Except to the extent permitted by CPLR
Rule 3115 or by this rule, during the course of the
examination persons in attendance shall not make statements
or comments that interfere with the questioning
221.2 Refusal to answer when objection is made. A deponent
shall answer all questions at a deposition, except (i) to
preserve a privilege or right of confidentiality, (ii) to
enforce a limitation set forth in an order of the court, or
(iii) when the question is plainly improper and would, if
answered, cause significant prejudice to any person. An
attorney shall not direct a deponent not to answer except
as provided in CPLR Rule 3115 or this subdivision. Any
refusal to answer or direction not to answer shall be
accompanied by a succinct and clear statement of the basis
therefor. If the deponent does not answer a question, the
examining party shall have the right to complete the
remainder of the deposition
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221. UNIFORM RULES FOR THE
CONDUCT OF DEPOSITIONS
221.3 Communication with the deponent
An attorney shall not interrupt the deposition
for the purpose of communicating with the deponent unless
all parties consent or the communication is made for the
purpose of determining whether the question should not be
answered on the grounds set forth in section 221.2 of these
rules and, in such event, the reason for the communication
shall be stated for the record succinctly and clearly
IT IS FURTHER STIPULATED AND AGREED that the
transcript may be signed before any Notary Public with the
same force and effect as if signed before a clerk or a
Judge of the court
IT IS FURTHER STIPULATED AND AGREED that the
examination before trial may be utilized for all purposes
as provided by the CPLR
IT IS FURTHER STIPULATED AND AGREED that all
rights provided to all parties by the CPLR cannot be deemed
waived and the appropriate sections of the CPLR shall be
controlling with respect hereto
IT IS FURTHER STIPULATED AND AGREED by and
between the attorneys for the respective parties hereto
that a copy of this examination shall be furnished, without
charge, to the attorneys representing the witness
testifying herein
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A. MCGUIRE
A N K E E N M C G U I R E, called as a witness, having
been first duly sworn by a Notary Public of the State of
New York, was examined and testified as followsz
EXAMINATION BY
MR. ALLADI2
Q. Please state your name for the record
A Ankeen McGuire
Q. What is your addressP
A 130 Lenox Road, Apartment D6, Brooklyn, New York
11226.
Q. Good morning.
A. Good morning.
Q. Ms. McGuire, my name is Om Alladi. I represent
the City in this matter, the DOT. Do you understand we are
here to take your deposition in a lawsuit that you filed
against the CityP
A I dd
Q. Ilm going to ask you a series of questions today
about an incident that occurred a while ago. The court
reporter will take down everything I say and everything you
say and our dialogue. If you donlt understand any of my
questions, tell me and I will try to rephrase them
A. Okay.
Q. I ask that you speak loudly and clearly, so the
court reporter and I can both hear you and that you answer
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A. MCGUIRE
in your own words rather that gestures or nods, so the
court reporter can take down your testimony
A. Okay.
Q. Is there any reason that you canit give complete
and accurate testimony todayP
A NO.
Q. Okay. I mentioned the court reporter a moment
ago. She is taking down everything. Itls really important
that we donlt talk over each other and we let each other
finish the questions and answers. I will do my best also
to wait for you to finish your answers
A. Great.
Q. If you need to take a break at any point, let me
know. The only thing I ask is that you answer any pending
question before we take a break if you need it. I donlt
think we will be here too long, but we can take a break if
you need it
A Thank you
Q. Okay. Before we begin, what is the date of the
incident for which we are here todayP
A September 19, 201k
Q. Okay, just some basic background questions first
What is your full nameP
A Ankeen Rose McGuire
Q. Do you have any other namesP
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A. MCGUIRE
No.
What is your date of birthP
MR. SALKz Only the year on the record
MR. ALLADIz Yes, only the year on the
record.
XX-XX-1981
Please state your Social Security Number as welL
Wel only put the last four on the record
MR. SALKz Thatls fine
XXX-XX-5631.
Are you marriedP
N0.
Any childrenP
Nd
Do you receive any edicare benefits7
Medicare, no.
Do you receive any Medicaid benefitsP
Yes
Do you have a Medicaid number7
I do for insurance
Do you happen to know that7
Not off the top of my head
Your home address now is the Lenox Road addressP
Yes
Was that your home address on September 19, 20147
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A. MCGUI RE
A. YES.
Q. What is your present weight7
A. 135.
Q. What was your weight on September 19, 20147
A It would have been around than
Q. Were you employed on September 19, 20147
A Yes
Q. what was your employmentP
A I worked for a man named Evan Eisman. He is a
sandblasten
Q. Can you describe the kind of work you did for
himl)
A It was manual. We lifted heavy things. I did
sandblasting for, like, sculptures, other artists like
granite, glass, metal.
Q. How long had you been working for Evan Eisman
prior to September 19, 20147
A. Two weeks.
Q. Two weeksP
A Yes
Q. Did you lose any sick time as a result of the
events that occurred on September 19, 20147
MR. SALK2 Objection to the form. You can
answen
A Well, I wasnlt salaried, so I wasnlt given sick
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A. MCGUI RE
time. I did lose wages due to the incident, yea
Q. Okay. You did not receive your full paycheck
during the time that you were not working as a result of
the incident that occurred on September 19, 20147
A. Yes.
Q. Did you return to work after the events that
occurred on September 19, 20147
A I returned to work two days after the surgery
which was a full week after the actual incident, so hold
on. It would have been 10 days after the actual incident I
went back to work
Q. Did you work full-timer.)
A I did. I had to miss every Friday in order to go
see the surgeons who had worked on me, so I nussed hours on
Fridays. ,
Q. were you compensated daily2
A I worked an hourly wage
Q. Okay. You missed hours every FridayP
A Every Friday
Q. Okay. Were you paid a different amount because
of the missed days from workP
A. No, I was not.
Q. Okay. Approximately how much wages are you
claiming you lost based on the events that occurred on
September 19, 20147
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A. MCGUIRE
M. SALKz Objection to the form. You can
answer if you know
A I donlt know off the top of my head
Q. Okay. Do you remember what your ordinary payment
for a week of work was during that time periodi
A I made S600 before taxes
MR. LOCHNERz Thatls per weekP
THE WITNESS2 Per week
Q. Okay. I want to talk about the events that
occurred on September 19, 2014. What day of the week was
that7
A It was a Friday
Q. Can you describe your day that FridayP
A Yes. I went to work. I worked 9100 to 5200 and
then there was a yoga class that I would go to in
Williamsburg. I hiked from home to the Navy Yard. I
worked from 9200 to 5200. From the Navy Yard, I hiked to
Williamsburg and went to yoga from 6130 to 7130. I hiked
back down to Crown Heights to have dinner with a friend
When I left her house, I was on my way home when the
incident occurred
MR. LOCHNERz Could I get that read back
please.
(whereupon, the referred-to question and
answer was read back by the Reporter.
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A. MCGUIRE
THE WITNESSz Could I say something7
M. SALKs No
THE WITNESS2 Okay
Q. Is there anything you would like to add to your
last answerP
A Yes. I biked from the Navy Yard to Williamsburg
and from Williamsburg to Crown Heights
MR. LOCHNERz You were going from Crown
Heights to your home when you had the accident7
THE WITNESSI Yes.
Q. Where did the incident occurP
A Just south of Empire Boulevard on Franklin Avenue
where it meets Washington
MR. LOCHNERz Could you read that back
pleaseP
(Whereupon, the referred-to answer was read
back by the Reporter.
MB. LOCHNERz Thank yom
Q. Did it occur on the r0ad2
A On the road in the crosswalk
Q. were there any road barriers on September 19
2014, such as barricades, caution tape, orange cones2
A No.
MR. LOCHNERz Are you asking about in the
accident locationP
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A. MCGUIRE
MR. ALLADIz Yes, in the accident location
of Franklin and Washington.
Q. No barricadesi)
A. NO.
Q. Were there any cars on the street on Franklin as
you were biking down it on September 19, 20147
A That were driving7
Q. Driving or parked7
A There were parked cars on Franklin
Q. Were the parked cars on the right side of the
road or the left side of the roadP
A The parked cars were on the left side of Franklin
and the right side of Washington because thatls where they
sort of meet
Q. How far was the curb in relation to the site
where you were inj uredP
MR. SALKz The curb7 Objection to the form.
What do you meanP
MR. ALLADIz Illl rephrase
Q. You mentioned it was in the middle of a
crosswalk. Can you estimate the distance between the place
where you were injured and the crosswalk, the start of the
crosswalk9
M. LOCHNERz Objection to the form
M. SALKz Objection to the form. She
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A. MCGUIRE
already testified it was in the crosswalk. Can
we just go off the record for a second7
(whereupon, an off-the-record discussion was
held. )
Q. You were biking up Franklin and into the
crosswalk on Franklin and Washington, is that correctP
MR. SALKz Objection to form. You can
answer if you understand.
A. I was technically biking down Franklin.
Q. Okay.
MR. SALKz Letls try not to use up and down
as much as possible.
Q. You were biking on Franklin toward Washington and
you hit something in the crosswalkz is that rightP
A. Yes.
Q. From the right side of the crosswalk, from the
rightmost curb of the crosswalk, can you estimate the
distance where whatever you hit wasP
MR. LOCHNERz Objection to form.
A. I feel like it was maybe, like, eight feet. It
was definitely, like, not near either sidewalk. It was
dead center.
MR. LOCI-INERz Of the crosswalk on FranklinP
THE WITNESSz Yeah, thank you.
Q. Had you ever been to that location prior to
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A. MCGUIRE
September 19, 20147
A Yes
Q. How many times had you been to that location
prior to September 19, 20147
A Numerous times. Itls a regular route
Q. More than 10 timesi
A Sure.
Q. More than 20 timesP
A Probably, yeah
Q. More than 50 timesP
A I donlt know
Q. Some number between 20 and SOP
A Yes
Q. On previous occasions that you had visited that
location, was that in the daytimeP
A Yes
Q. Had you ever visited Franklin and Washington
prior to September 19, 2014 in the nighttimeP
A Probably, but I canvt -- Ilm unsure
Q. Okay. Have you visited that location on a bike7
A Yes
Q. Did you ever see the alleged defect on prior
occasionsP
A Nu
Q. What was the weather like on September 19, 20147
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A. MCGUIRE
A It was a beautiful night. It was a really nice
biking night, like a little bit of a breeze, but not cold,
warm, dry.
Q. It was not raining7
A. It was not raining.
Q. What kind of clothes were you wearing7
A I think I was still in my yoga pants and a
T-shirt.
Q. Was there any daylight at the time of the
incident7
A. NO.
Q. Were there any streetlights7
A There are streetlights in the area. It was
really dark that nighn
Q. Okay. Did any streetlights illuminate the
crosswalkP
A. No.
Q. Do you wear any corrective lensesP
A I do
Q. Do you wear glassesP
A Rarely, usually contacts
Q. Okay. Did you wear contact lenses on
September 19, 20147
A. Absolutely.
Q. Are you nearsightedP
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A. MCGUIRE
A. I am. I donlt go anywhere without my contact
lenses
Q. How often did you visit the eye doctor prior to
September 19, 20142
A The eye doctor, once a yean
Q. Prior to that date, September 19, 2014, when was
the last time you had visited the eye doctorP
A It would have been the previous Christmas
Q. That would have been 2013, December7
A. 2013, yes.
Q. What was your prescription prior to September 19,
20149
A. My right eye would have been negative 5.5 and my
left would have been negative I
MR. LOCHNER2 Off the record
(whereupon, an off-the-record discussion was
held. 3
Q. Since September 19, 2014, has your vision
changedP
A It did, yes. It has actually improved, but they
kept my contacts approximately the same because itls like
tiny amounts, so jumping down is silly
MR. SALKz Off the record
(whereupon, an off-the-record discussion was
heldd
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A. MCGUIRE
Q. To clarify, youlre using the same prescription
even though your vision has improved7
A Yes.
Q. Okay. Within a 24-period prior to the night of
September 19, 2014, did you consume any alcohol7
A No
Q. Within a 24-hour period prior to the night of
September 19, 2014, did you do any drugsP
A No.
Q. Within a 24-hour period prior to the night of
September 19, 2014, did you take any medicatiom
prescription or nonprescriptionP
A No
Q. Within a 24-hour period prior to the night of
September 19, 2014, did you fail to take any medication
that you were prescribedP
A NQ
Q. Okay. Could you briefly describe in your own
words what happenedP
A I was biking down Franklin. Itls a hill and at
the end of the hill there is a stoplight at Empire. It was
red, so I stopped. When it turned green, I went through
Within that first block, I wasnlt going fast since I had
just come out of a stop. I was just biking
The next thing I knew, I was on the ground. My
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A. MCGUIRE
face hurt and I could taste blood. I reached up to touch
my face and realized that my chin had been spit. I got up
from the ground and looked around and realized that there
was a gentleman in a car or like a truck on Washington
I walked over to him in the truck and he rolled
his window down and he asked if I was okay. When I opened
my mouth to say I think so, I realized that I couldnlt move
my jaw. He asked if I wanted an ambulance and I asked for
a tissue. Then I said if you wouldn-t mind calling an
ambulance
I remember walking back to the middle of the
street to get my bike out of it and I walked over to in
front of his car to a sign post. I locked it to the sign
post, turned off my light. By that time, a friend of his
and I donlt know where he came from --
Q. Letys break it up a little bit. That was great
Letls start with the bike. What kind of bike were you
ridingP
A I have a Mercier Kilo Strippen
Mr. LOCHNER2 Could you spell that7
THE WTTNESSI M-E-R-C-I-E-R, K-I-L-O
S-T-R-I-P-P-E-R
Q. Is that a road bikeP
A It is a road bike
Q. What kind of tires are on that bikeP
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A. MCGUIRE
A. Road tires.
Q. How thick are those tires7 If you want, you can
give me an estimation.
A I donlt know off the top of my head
MR. LOCHNERz Are they like the big ones you
would see on a mountain bike, the thin ones you
would see on a road bike or something elseP
THE WITNESS2 The thin ones you would see on
a road bike
Q. At the time on September 19, 2014, were those
tires filled upP
A Yes
Q. When was the last time prior to September 19
2014, that you had checked those tires for airP
A I rode my bike every day, so I would check them
pretty regularly. I would know if they were flat
Q. How would you knowP
A Well, I wouldn-t be able to ride
Q. Would you be able to feel the tiresP
A. Yes.
Q. Okay
A You sort of sink to the ground
Q. Did your bike have shock absorbers on September
19, 20142
A Shock absorbers like in a carP
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FILED: KINGS COUNTY CLERK 03/01/2023
05/12/2022 03:09
03:54 PM INDEX NO. 512178/2015
NYSCEF DOC. NO. 78
48 RECEIVED NYSCEF:2003/01/2023
05/12/2022
A. MCGUIRE
MR. LOCHNERZ Front fork shocks or seat
shocks or frame shocks7
THE WITNESS2 NQ
M. SALKz Off the record
(Whereupon, an off-the-record discussion was
heldJ
Q. Do you still ride your bikeP
A Not in New York City
Q. Okay. Today, does your bike have any shock
absorbers that we mentioned just a second ago7
A No
Q. Were you wearing any gloves at the time of the
incidentP
A Na
Q. D0 you wear gloves now when you ride your bike7
A Na
Q. Were you wearing a helmet on September 19, 20142
A Yea
Q. Do you know the make and model of the helmet7
A I believe it was a Bell. I donlt know the model
but super durable
MR. LOCHNER2 Was it strapped onP
THE WITNESS2 Yeah
Q. How long before September 19, 2014 did you own
that helmetP
DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting.com
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FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 46 RECEIVED NYSCEF: 03/01/2023 05/12/2022 1 of 2 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 46 RECEIVED NYSCEF: 03/01/2023 05/12/2022 2 of 2 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 47 RECEIVED NYSCEF: 03/01/2023 05/12/2022 1 of 4 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 47 RECEIVED NYSCEF: 03/01/2023 05/12/2022 2 of 4 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 47 RECEIVED NYSCEF: 03/01/2023 05/12/2022 3 of 4 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 47 RECEIVED NYSCEF: 03/01/2023 05/12/2022 4 of 4 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 1 RECEIVED NYSCEF: 05/12/2022 03/01/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ________________________________________________________ __X ANKEEN MCGUIRE, PLAINTIFF, -against- Index No.1 504982/2016 THE CITY OF NEW YORK, THE NEW YORK CITY MUNICIPAL WATER BOARD, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, NEW YORK CITY DEPARTMENT OF SANITATION, KEYSPAN ENERGY DELIVERY N. Y. C. , KEYSPAN ENERGY CORPORATION, KEYSPAN CORPORATION, KEYSPAN ENERGY SERVICES INC. , KEYSPAN GAS EAST CORPORATION, KEYSPAN PLUMBING AND HEATING SERVICES, INC. , THE BROOKLYN UNION GAS COMPANY and NATIONAL GRID USA SERVICE COMPANY, DEFENDANTS. ________________________________________________________ __X DATES April 4, 2018 TIMEz 10110 A.M. EXAMINATION BEFORE TRIAL of the Plaintiff, ANKEEN MCGUIRE, taken by the Defendants, pursuant to a Court Order, held at the offices of the New York City Law Department, 350 Jay Street, Brooklyn, New York 11201, before Suzann R. Caputo, a Notary Public of the State of New York. DIAMOND REPORTING (877) 624-3287 infwdiamondreporting. com 1 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 2 APPEARANCESZ SALENGER, SACK, KIMMEL BAVARO, LLP 6. Attorneys for the Plaintiff ANKEBN MCGUIRE 180 Froehlich Farm Boulevard Woodbury, New York 11797 BYz BENJAMIN SALK, ESQ., of Counsel ZACHARY W. CARTER, ESQ. CORPORATION COUNSEL NEW YORK CITY LAW DEPARTMENT Attorneys for the Defendants THE CITY OF NEW YORK, THE NEW YORK CITY MUNICIPAL WATER BOARD, NEW YORK CITY DEPARTMENT OF TRANSPORTATION and NEW YORK CITY DEPARTMENT OF SANITATION 100 Church Street New York, New York 10007 BYz OM ALLADI, ESQ., of Counsel File 492 2015-048102 Controlz 169465 O. CONNOR, CONNOR, HINTZ Q DEVENEY, LLP OI Attorneys for the Defendants KEYSPAN ENERGY DELIVERY N. Y. C. , KEYSPAN ENERGY CORPORATION, KEYSPAN CORPORATION, KEYSPAN ENERGY SERVICES INC., KEYSPAN GAS EAST CORPORATION, KEYSPAN PLUMBING AND HEATING SERVICES, INC., THE BROOKLYN UNION GAS COMPANY and NATIONAL GRID USA SERVICE COMPANY One Huntington Quadrangle, Suite lCl0 Melville, New York 11747 BYz CHRISTOPHER LOCHNER, ESQ. C1ochnerGoohdlaw. com w up 90 DIAMOND REPORTING (877) 624-3287 infmidiamondreporting. com 2 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 3 221. UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS 221.1 Objections at Depositions (a) Objections in general. No objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed, and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to Article 31 of the CPLR (b) Speaking objections restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning 221.2 Refusal to answer when objection is made. A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of the court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting.com 3 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 05/12/2022 03/01/2023 4 221. UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS 221.3 Communication with the deponent An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly IT IS FURTHER STIPULATED AND AGREED that the transcript may be signed before any Notary Public with the same force and effect as if signed before a clerk or a Judge of the court IT IS FURTHER STIPULATED AND AGREED that the examination before trial may be utilized for all purposes as provided by the CPLR IT IS FURTHER STIPULATED AND AGREED that all rights provided to all parties by the CPLR cannot be deemed waived and the appropriate sections of the CPLR shall be controlling with respect hereto IT IS FURTHER STIPULATED AND AGREED by and between the attorneys for the respective parties hereto that a copy of this examination shall be furnished, without charge, to the attorneys representing the witness testifying herein DIAMOND REPORTING (877) 624e3287 info6diamondreporting.com 4 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 5 A. MCGUIRE A N K E E N M C G U I R E, called as a witness, having been first duly sworn by a Notary Public of the State of New York, was examined and testified as followsz EXAMINATION BY MR. ALLADI2 Q. Please state your name for the record A Ankeen McGuire Q. What is your addressP A 130 Lenox Road, Apartment D6, Brooklyn, New York 11226. Q. Good morning. A. Good morning. Q. Ms. McGuire, my name is Om Alladi. I represent the City in this matter, the DOT. Do you understand we are here to take your deposition in a lawsuit that you filed against the CityP A I dd Q. Ilm going to ask you a series of questions today about an incident that occurred a while ago. The court reporter will take down everything I say and everything you say and our dialogue. If you donlt understand any of my questions, tell me and I will try to rephrase them A. Okay. Q. I ask that you speak loudly and clearly, so the court reporter and I can both hear you and that you answer DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting. com 5 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 05/12/2022 03/01/2023 6 A. MCGUIRE in your own words rather that gestures or nods, so the court reporter can take down your testimony A. Okay. Q. Is there any reason that you canit give complete and accurate testimony todayP A NO. Q. Okay. I mentioned the court reporter a moment ago. She is taking down everything. Itls really important that we donlt talk over each other and we let each other finish the questions and answers. I will do my best also to wait for you to finish your answers A. Great. Q. If you need to take a break at any point, let me know. The only thing I ask is that you answer any pending question before we take a break if you need it. I donlt think we will be here too long, but we can take a break if you need it A Thank you Q. Okay. Before we begin, what is the date of the incident for which we are here todayP A September 19, 201k Q. Okay, just some basic background questions first What is your full nameP A Ankeen Rose McGuire Q. Do you have any other namesP DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting.com 6 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 A. MCGUIRE No. What is your date of birthP MR. SALKz Only the year on the record MR. ALLADIz Yes, only the year on the record. XX-XX-1981 Please state your Social Security Number as welL Wel only put the last four on the record MR. SALKz Thatls fine XXX-XX-5631. Are you marriedP N0. Any childrenP Nd Do you receive any edicare benefits7 Medicare, no. Do you receive any Medicaid benefitsP Yes Do you have a Medicaid number7 I do for insurance Do you happen to know that7 Not off the top of my head Your home address now is the Lenox Road addressP Yes Was that your home address on September 19, 20147 DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting.com 7 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 05/12/2022 03/01/2023 8 A. MCGUI RE A. YES. Q. What is your present weight7 A. 135. Q. What was your weight on September 19, 20147 A It would have been around than Q. Were you employed on September 19, 20147 A Yes Q. what was your employmentP A I worked for a man named Evan Eisman. He is a sandblasten Q. Can you describe the kind of work you did for himl) A It was manual. We lifted heavy things. I did sandblasting for, like, sculptures, other artists like granite, glass, metal. Q. How long had you been working for Evan Eisman prior to September 19, 20147 A. Two weeks. Q. Two weeksP A Yes Q. Did you lose any sick time as a result of the events that occurred on September 19, 20147 MR. SALK2 Objection to the form. You can answen A Well, I wasnlt salaried, so I wasnlt given sick DIAMOND REPORTING (877) 624-3287 infoQdiamondreporting.com 8 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 9 A. MCGUI RE time. I did lose wages due to the incident, yea Q. Okay. You did not receive your full paycheck during the time that you were not working as a result of the incident that occurred on September 19, 20147 A. Yes. Q. Did you return to work after the events that occurred on September 19, 20147 A I returned to work two days after the surgery which was a full week after the actual incident, so hold on. It would have been 10 days after the actual incident I went back to work Q. Did you work full-timer.) A I did. I had to miss every Friday in order to go see the surgeons who had worked on me, so I nussed hours on Fridays. , Q. were you compensated daily2 A I worked an hourly wage Q. Okay. You missed hours every FridayP A Every Friday Q. Okay. Were you paid a different amount because of the missed days from workP A. No, I was not. Q. Okay. Approximately how much wages are you claiming you lost based on the events that occurred on September 19, 20147 DIAMOND REPORTING (877) 624-3287 infoQdiamondreporting.com 9 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 10 RECEIVED NYSCEF: 03/01/2023 05/12/2022 A. MCGUIRE M. SALKz Objection to the form. You can answer if you know A I donlt know off the top of my head Q. Okay. Do you remember what your ordinary payment for a week of work was during that time periodi A I made S600 before taxes MR. LOCHNERz Thatls per weekP THE WITNESS2 Per week Q. Okay. I want to talk about the events that occurred on September 19, 2014. What day of the week was that7 A It was a Friday Q. Can you describe your day that FridayP A Yes. I went to work. I worked 9100 to 5200 and then there was a yoga class that I would go to in Williamsburg. I hiked from home to the Navy Yard. I worked from 9200 to 5200. From the Navy Yard, I hiked to Williamsburg and went to yoga from 6130 to 7130. I hiked back down to Crown Heights to have dinner with a friend When I left her house, I was on my way home when the incident occurred MR. LOCHNERz Could I get that read back please. (whereupon, the referred-to question and answer was read back by the Reporter. DIAMOND REPORTING (877) 624-3287 info6diamondreportinq.com l0 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 ll A. MCGUIRE THE WITNESSz Could I say something7 M. SALKs No THE WITNESS2 Okay Q. Is there anything you would like to add to your last answerP A Yes. I biked from the Navy Yard to Williamsburg and from Williamsburg to Crown Heights MR. LOCHNERz You were going from Crown Heights to your home when you had the accident7 THE WITNESSI Yes. Q. Where did the incident occurP A Just south of Empire Boulevard on Franklin Avenue where it meets Washington MR. LOCHNERz Could you read that back pleaseP (Whereupon, the referred-to answer was read back by the Reporter. MB. LOCHNERz Thank yom Q. Did it occur on the r0ad2 A On the road in the crosswalk Q. were there any road barriers on September 19 2014, such as barricades, caution tape, orange cones2 A No. MR. LOCHNERz Are you asking about in the accident locationP DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting.com 11 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF:12 05/12/2022 03/01/2023 A. MCGUIRE MR. ALLADIz Yes, in the accident location of Franklin and Washington. Q. No barricadesi) A. NO. Q. Were there any cars on the street on Franklin as you were biking down it on September 19, 20147 A That were driving7 Q. Driving or parked7 A There were parked cars on Franklin Q. Were the parked cars on the right side of the road or the left side of the roadP A The parked cars were on the left side of Franklin and the right side of Washington because thatls where they sort of meet Q. How far was the curb in relation to the site where you were inj uredP MR. SALKz The curb7 Objection to the form. What do you meanP MR. ALLADIz Illl rephrase Q. You mentioned it was in the middle of a crosswalk. Can you estimate the distance between the place where you were injured and the crosswalk, the start of the crosswalk9 M. LOCHNERz Objection to the form M. SALKz Objection to the form. She DIAMOND REPORTING (877) 624-3287 infoGdiamondreportinq.com 12 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 13 A. MCGUIRE already testified it was in the crosswalk. Can we just go off the record for a second7 (whereupon, an off-the-record discussion was held. ) Q. You were biking up Franklin and into the crosswalk on Franklin and Washington, is that correctP MR. SALKz Objection to form. You can answer if you understand. A. I was technically biking down Franklin. Q. Okay. MR. SALKz Letls try not to use up and down as much as possible. Q. You were biking on Franklin toward Washington and you hit something in the crosswalkz is that rightP A. Yes. Q. From the right side of the crosswalk, from the rightmost curb of the crosswalk, can you estimate the distance where whatever you hit wasP MR. LOCHNERz Objection to form. A. I feel like it was maybe, like, eight feet. It was definitely, like, not near either sidewalk. It was dead center. MR. LOCI-INERz Of the crosswalk on FranklinP THE WITNESSz Yeah, thank you. Q. Had you ever been to that location prior to DIAMOND REPORTING (877) 624-3287 infomiiamondreporting.com 13 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF:1403/01/2023 05/12/2022 A. MCGUIRE September 19, 20147 A Yes Q. How many times had you been to that location prior to September 19, 20147 A Numerous times. Itls a regular route Q. More than 10 timesi A Sure. Q. More than 20 timesP A Probably, yeah Q. More than 50 timesP A I donlt know Q. Some number between 20 and SOP A Yes Q. On previous occasions that you had visited that location, was that in the daytimeP A Yes Q. Had you ever visited Franklin and Washington prior to September 19, 2014 in the nighttimeP A Probably, but I canvt -- Ilm unsure Q. Okay. Have you visited that location on a bike7 A Yes Q. Did you ever see the alleged defect on prior occasionsP A Nu Q. What was the weather like on September 19, 20147 DIAMOND REPORTING (877) 624-3287 infogdiamondreporting.com 14 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF:15 05/12/2022 03/01/2023 A. MCGUIRE A It was a beautiful night. It was a really nice biking night, like a little bit of a breeze, but not cold, warm, dry. Q. It was not raining7 A. It was not raining. Q. What kind of clothes were you wearing7 A I think I was still in my yoga pants and a T-shirt. Q. Was there any daylight at the time of the incident7 A. NO. Q. Were there any streetlights7 A There are streetlights in the area. It was really dark that nighn Q. Okay. Did any streetlights illuminate the crosswalkP A. No. Q. Do you wear any corrective lensesP A I do Q. Do you wear glassesP A Rarely, usually contacts Q. Okay. Did you wear contact lenses on September 19, 20147 A. Absolutely. Q. Are you nearsightedP DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting.com 15 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 16 A. MCGUIRE A. I am. I donlt go anywhere without my contact lenses Q. How often did you visit the eye doctor prior to September 19, 20142 A The eye doctor, once a yean Q. Prior to that date, September 19, 2014, when was the last time you had visited the eye doctorP A It would have been the previous Christmas Q. That would have been 2013, December7 A. 2013, yes. Q. What was your prescription prior to September 19, 20149 A. My right eye would have been negative 5.5 and my left would have been negative I MR. LOCHNER2 Off the record (whereupon, an off-the-record discussion was held. 3 Q. Since September 19, 2014, has your vision changedP A It did, yes. It has actually improved, but they kept my contacts approximately the same because itls like tiny amounts, so jumping down is silly MR. SALKz Off the record (whereupon, an off-the-record discussion was heldd DIAMOND REPORTING (877) 624-3287 infoQdiamondreporting.com 16 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF: 03/01/2023 05/12/2022 17 A. MCGUIRE Q. To clarify, youlre using the same prescription even though your vision has improved7 A Yes. Q. Okay. Within a 24-period prior to the night of September 19, 2014, did you consume any alcohol7 A No Q. Within a 24-hour period prior to the night of September 19, 2014, did you do any drugsP A No. Q. Within a 24-hour period prior to the night of September 19, 2014, did you take any medicatiom prescription or nonprescriptionP A No Q. Within a 24-hour period prior to the night of September 19, 2014, did you fail to take any medication that you were prescribedP A NQ Q. Okay. Could you briefly describe in your own words what happenedP A I was biking down Franklin. Itls a hill and at the end of the hill there is a stoplight at Empire. It was red, so I stopped. When it turned green, I went through Within that first block, I wasnlt going fast since I had just come out of a stop. I was just biking The next thing I knew, I was on the ground. My DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting.com 17 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF:1803/01/2023 05/12/2022 A. MCGUIRE face hurt and I could taste blood. I reached up to touch my face and realized that my chin had been spit. I got up from the ground and looked around and realized that there was a gentleman in a car or like a truck on Washington I walked over to him in the truck and he rolled his window down and he asked if I was okay. When I opened my mouth to say I think so, I realized that I couldnlt move my jaw. He asked if I wanted an ambulance and I asked for a tissue. Then I said if you wouldn-t mind calling an ambulance I remember walking back to the middle of the street to get my bike out of it and I walked over to in front of his car to a sign post. I locked it to the sign post, turned off my light. By that time, a friend of his and I donlt know where he came from -- Q. Letys break it up a little bit. That was great Letls start with the bike. What kind of bike were you ridingP A I have a Mercier Kilo Strippen Mr. LOCHNER2 Could you spell that7 THE WTTNESSI M-E-R-C-I-E-R, K-I-L-O S-T-R-I-P-P-E-R Q. Is that a road bikeP A It is a road bike Q. What kind of tires are on that bikeP DIAMOND REPORTING (877) 624-3287 infogdiamondreporting.com 18 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF:1903/01/2023 05/12/2022 A. MCGUIRE A. Road tires. Q. How thick are those tires7 If you want, you can give me an estimation. A I donlt know off the top of my head MR. LOCHNERz Are they like the big ones you would see on a mountain bike, the thin ones you would see on a road bike or something elseP THE WITNESS2 The thin ones you would see on a road bike Q. At the time on September 19, 2014, were those tires filled upP A Yes Q. When was the last time prior to September 19 2014, that you had checked those tires for airP A I rode my bike every day, so I would check them pretty regularly. I would know if they were flat Q. How would you knowP A Well, I wouldn-t be able to ride Q. Would you be able to feel the tiresP A. Yes. Q. Okay A You sort of sink to the ground Q. Did your bike have shock absorbers on September 19, 20142 A Shock absorbers like in a carP DIAMOND REPORTING (877) 624-3287 infoQdiamondreportinq.com 19 FILED: KINGS COUNTY CLERK 03/01/2023 05/12/2022 03:09 03:54 PM INDEX NO. 512178/2015 NYSCEF DOC. NO. 78 48 RECEIVED NYSCEF:2003/01/2023 05/12/2022 A. MCGUIRE MR. LOCHNERZ Front fork shocks or seat shocks or frame shocks7 THE WITNESS2 NQ M. SALKz Off the record (Whereupon, an off-the-record discussion was heldJ Q. Do you still ride your bikeP A Not in New York City Q. Okay. Today, does your bike have any shock absorbers that we mentioned just a second ago7 A No Q. Were you wearing any gloves at the time of the incidentP A Na Q. D0 you wear gloves now when you ride your bike7 A Na Q. Were you wearing a helmet on September 19, 20142 A Yea Q. Do you know the make and model of the helmet7 A I believe it was a Bell. I donlt know the model but super durable MR. LOCHNER2 Was it strapped onP THE WITNESS2 Yeah Q. How long before September 19, 2014 did you own that helmetP DIAMOND REPORTING (877) 624-3287 infoGdiamondreporting.com