Exhibit,Appendix: Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc.

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                                (FILED: NEW YORK COUNTY CLERK 1272372015 04:37 PM INDEX NO. 158327/2013

NYSCEF DOC. NO. 139 RECEIVED NYSCEF: 12/23/2015

EXHIBIT ASUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK .
KEVIN McGONIGAL, VERIFIED BILL OF
PARTICULARS
Plaintiff(s),

Index No.: 158327/2013
-against-

NYY STEAK MANHATTAN, LLC, and PLAZA
CONSTRUCTION CORP.,

Defendant(s).
aonnnnemmnX 1

PLAZA CONSTRUCTION CORP,,

Third party plaintiff(s),
-against-
: BARING INDUSTRIES, INC.,
Third party defendant(s).
ATTORNEYS °

PLEASE TAKE NOTICE that the plaintiff, by his attorneys, SACKS AND SACKS,
LLP, responds to the demand for a Verified Bill of Particulars, by the third party defendant,
BARING INDUSTRIES, INC., based upon information and belief as follows:

1. The accident occurred on 9/6/13 at approximately 8:00 a.m.

2. The accident occurred at the premises under construction known as New
York Yankee Steakhouse located at 7 West 51* Street, in the Borough of Manhattan, City and
State of New York.

3. The occurrence as aforesaid was caused solely and wholly by reason of
the negligence, carelessness and recklessness of the defendants, their contractors, agents and

employees who were negligent in the ownership, operation, management and control of theaforesaid premises. While plaintiff was lawfully performing his duties, he was caused to
sustain serious and severe injuries when he fell and/or stepped into an unguarded opening.
Said opening was hazardous and dangerous and did not contain any planking, barricades
guard rails; there were no warnings thereat; the illumination in the area was poor and
efficient; further, there was dirt, debris and refuse in the area. Defendants, their contractors,
agents and employees failed to ensure that the jobsite was properly illuminated; farther,
allowed dirt, debris and other refuse to be and remain in hallways, passageways,
thoroughfares and work areas causing dangerous and hazardous work conditions; further,
" failed to properly protect dangerous and hazardous openings; further, failed to guard off,

barricade same; further, failed to have warnings thereat; further, allowed dangerous and
hazardous openings to exist in said work area; further, violated Sections 200, 240 and 241(6)
of the Labor Law of the State of New York, Rule 23 of the Industrial Code of the State of New
York, specifically but not limited to 23-1.5, 23-17, 23-1.11, 23-1.15, 23-2.1, 23-2.2, 23-2.3, 23-
2A, 23-2.5, 1.30, 23-3, 23-4, 23-5, 23-6, Article 1926 of O.S.ELA and was otherwise negligent,
careless and reckless causing plaintiff to sustain serious and severe injuries.

4, The plaintiff sustained the following injuries and ill effects therefrom, as
a result of the accident, including:

CERVICAL SPINE:

C5-6 diffuse spondylosis

C2-3 broad based disc herniation;

C3-4 bilateral posterolateral disc osteophyte formation;

C4-5 central disc herniation with bilater posterolater spondylotic ridging;C5-6 moderate broad based disc herniations with severe narrowing of the left neural
foramen;

Impingement upon the left C6 nerve root;

C6-7 broad based disc herniation;

“Internal derangement;

Sprain/strain;

Restriction of motion; .

Stiffness;

Pain and tenderness;

“Injections required

“Puture surgical intervention required

LUMBAR SPINE;

L4-5 broad based disc hemiation with thecal sac compression and disc dessication;
L5-S1 broad based disc herniation.

Internal derangement,

Sprain/strain;

Restriction of motion;

Stiffness;

Pain and tenderness;

Paid radiating into the lower extremities;

Difficulty ambulating;

Antalgic gait.

THORACIC SPINE:Internal derangement;
Sprain/strain;
Restriction of motion;,
Pain and tenderness;

LEFT SHOULDER:

Subacromial bursal fluid in subscapular recess of shoulder joint;

Thickening and fraying with increased intrasubstance signal of the

supraspinatus tendon;

Tendonosis;

Grade J strain infraspinatus tendon;’

Tear/fraying at the posterior superior glenoid labrum;
Internal derangement; ,

Sprain/strain;

Pain and tenderness;

Restriction of motion;

Stiffness;

Weakness.

* Surgical intervention required.

RIGHT SHOULDER:

Internal derangement,
Sprain/strain;
Restriction of motion;

Weakness;Stiffness;

*Injections required.

RIGHT HIP:
Internal derangement;
Sprain/strain;
Pain and tenderness;
Weakness;
Stiffness;
Restriction of motion;

Difficulty ambulating.

LEFT HIP:
Internal derangement;
Sprain/strain,
Pain and tenderness;
Weakness;
Stiffness;
Restriction of motion;
Difficulty ambulating.

LEFT KNEE:
Intraligamentous ganglion cyst;

” Reactive subchondral cystic change of tibial attachment;Full thickness particular cartilage fissure of the medial facet at the patella;

Patellar tendonitis;

Internal derangement;

Sprain/strain;

Pain and tenderness;

Restriction of motion;

Difficulty ambulating

*Future surgical intervention required.
RIGHT KNEE:

Internal derangement;

Sprain/strain;

Pain and tenderness;

Restriction of motion;

Difficulty ambulating
NECK:

Severe headache radiating from cervical spine
LEFT ANKLE:

Internal derangement;

Sprain/strain;

Restriction of motion;

Pain and tenderness;

Weakness;

" Stiffness;Swelling;
Difficulty ambulating

All of the above injuries were attended with extreme pain and suffering and
have effected plaintiffs bodily system in the skin, nerves, bones, tissues, tendons, muscles,
blood vessels and other tissues.

All of the above injuries and all affects therefrom are permanent in nature
except those of superficial nature.

All of the plaintiff's injuries have required extensive medical care, physical
therapy and will in the future require further medical care and treatment including physical
therapy and the possible need for further surgical intervention. Plaintiff's injuries were
asymptomatic prior to the date of accident and or symptomatic and said accident has
aggravated or exacerbated either an asymptomatic condition or less symptomatic condition.

Plaintiff will require future surgeries to include but not limited to left shoulder and
Jeft knee. Additionally, plaintiff will require continued orthopedic care, neurological care,
psychiatric care, hospitalization, physical therapy, medications and diagnostic exams. The
present value of the future medical care is $1,000,000.00. Said future medical care does not
take into account the inflation of the health care industry.

Plaintiff reserves the right to supplement and or amend his Bill of Particulars at a
later date.

5. All of the above injuries are permanent in nature and kind.

a. The plaintiff was confined to his bed and home for approximately 30

days following the accidents occurrence.b. See 6a. supra.

c. ‘The plaintiff was not confined to a hospital following the accident’s
occurrence.

7.
a. Steamfitter.
b. The plaintiff was earning $101.65 per hour in wages and benefits or
$3,557.75 per week.

8. The plaintiff was employed by Day and Night Refrigeration also known

as Kimco Refrigeration, 10 Charles Street, New Hyde Park, New York 11040.
9. : Wage loss through August 13, 2014 totals approximately $170,772.00.
Please be advised that wage loss is continuing indefinitely.

10. The plaintiff has been totally incapacitated from employment from the

date of accident to date.

1.
a. Plaintiffs date of birth is 3/29/1977.
b. Plaintiff's Social Security Number is 091-64-4776.
© Plaintiff resides at 117 Chrisjan Drive, Hast Stroudsburg,
Pennsylvania 18301.
12. Special damages are not known at this time. Plaintiff will supplement

this response under separate cover.
13. There is no claim for loss of services or consortium.
14. The accident did not occur on a stairway.

“15. The accident occurred in the basement of the aforementioned premises.16. This demand is beyond the purview of a Bill of Particulars and is more
appropriate for a deposition.

17. The plaintiff was working at the aforementioned premises as an
employee of Kimco Refrigeration, a/k/a Day and Night Refrigeration.

18. The accident occurred when the plaintiff was caused to trip and fall into

an unguarded opening at the aforementioned premises due to construction debris.

19. See answer to number 3, supra.

20. See answer to number 3, supra.

21. See answer to number 3, supra.

22. ‘The accident does not involve a defective ladder.

23. The accident does not involve a defective scaffold.

24. The accident does not involve a falling object.

25. Notice is not a requisite to recovery in an action based upon a violation of

Labor Law Section 240 and 241(6). However, both actual and constructive notice are alleged
based upon the violation of Labor Law Section 200 and common law negligence. The name
of the person or persons to whom notice was given is not known at the present time and will
be provided if and when it is available.

Plaintiff reserves the right to supplement this response at a later date

26. It is claimed that the defendants and third-party defendants violated
Labor Law § 240(1), § 241(6) and § 200 as well as common law negligence; rules of O.S.H.A,,
specifically §§ 1926.20, 4926.25, 1926.26, 1926.28, 1926.34, 1926.95, 1926.104, 1926.105,
1926.200, 1926.201, 1926,202, 1926.250, 1926.251, 1926.252, 1926.500, 1926.501, 1926,502, Rule

23 of the Industrial Code of the State of New York, specifically 23-17MHIOOMDAA IMAM ADA, 23-1.11(a)(b)(c), 23-1.15(ay(bY(o)(A)(e), 23-
L16(ayb)oaye\H(D2), 23-1,17(a)(bMeY(dyfe), 23-130, 23-21 (ay(1)(2)(b), -23-
2.Aay(b)(N(1(2)B AE), 23-2.4(a)(b)(A)A)GH)AEMOMD)-

2. See answer to number 3, supra.

28. Plaintiff's counsel cannot answer this question at this time as we have not
had any discovery nos taken any depositions of any parties.

DATED: NEW YORK, NEW YORK
October 20, 2014

Yours, etc.”

SACKS AND SACKS, LLP

mid MDa #

ANDREW R. DIAMOND, ESQ.
Attorneys for Plaintiff(s)

150 Broadway - 4th Floor

New York, NY 10038

(212) 964-5570

TO:

FABIANI COHEN & HALL, LLP
Attorneys for Defendants

NYY STEAK MANHATTAN, LLC and
PLAZA CONSTRUCTION CORP.

570 Lexington Avenue, Ath Floor

New York, New York 10022

Tel: (212) 644-4420

LAW OFFICES OF CHARLES J. SIEGEL
Attorneys for Third-Party Defendant
BARING INDUSTRIES, INC.

125 Broad Street-7"" Floor

New York, New York 10004

Attention: Nikolaos E. Diamantis, Esq.ATTORNEY'S VERIFICATION

ANDREW R. DIAMOND, ESQ. an attorney duly admitted to practice in the
Courts of this State, affirms the following under the penalties of perjury:

J am an attorney associated with the firm of SACKS AND SACKS, LLP, attorneys
for the plaintiff(s) in the instant action. That he has read the foregoing VERIFIED BILL OF
PARTICULARS knows the contents thereof, and upon information and belief, deponent
believes the matters alleged therein to be true.

The reason for this verification is made by deponent and not by plaintiff is that the
plaintiff is in a County other than the one in which plaintiff's attorneys maintain their office.

The source of deponent's information and the grounds of his belief are
communications, papers, reports and investigations contained in this file.

DATED: New York, New York
October 20, 2014

. O (iS— a

ANDREW R. DIAMOND, ESQ.SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
KEVIN McGONIGAL,
Plaintiff(s), Index No.: 158327/2013
-against-

NYY STEAK MANHATTAN, LLC and PLAZA
CONSTRUCTION CORP.,

Deféndant(s).

VERIFIED BILL OF PARTICULARS

Sacks and Sacks, LLP
150 Broadway, 4" Floor
New York, New York 10038
T: (212) 964-5570
F; (212) 349-2141SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
con nnneeennennneneeeneneenenennnnnanmnnnntnnniaananennnmnnquanmenenX
KEVIN McGONIGAL, VERIFIED BILL OF
PARTICULARS
Plaintiff(s),
~against- Index No.: 158327/2013

NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP, and
BARING INDUSTRIES, INC.,

Defendant(s).

PLAZA CONSTRUCTION CORP.,

Third party plaintiff(s),
-against-
BARING INDUSTRIES, INC.,
Third party defendant(s).
mace rnnceneaeneeiimenenanetnnncueneanenennensnnnrnnumanennnneamnenn x

BARING INDUSTRIES, INC.,

Second Third party plaintiff(s),
-against-

DAY & NITE REFRIGERATION CORP. and.
KIMCO REFRIGERATION CORP,

Second Third party defendant(s).

ATTORNEYS:

PLEASE TAKE NOTICE that the plaintiff, by his attorneys, SACKS AND SACKS, LLP,
responds to the demand for a Verified Bill of Particulars, by the second third party defendants, DAY
& NITE REFRIGERATION CORP. AND KIMCO REFRIGERATION CORP. based upon
information and belief as follows:

1, Plaintiff resides at 117 Chrisjan Drive, East Stroudsburg, PA 18301.2. Plaintiff is 36 years of age; date of birth 8/29/1977; Social Sec, No.: 091-64-4776,

3. See response to No. 1 supra.

4, The plaintiff was employed by Day and Night Refrigeration also known as Kimco
Refrigeration, 10 Charles Street, New Hyde Park, New York 11040.

5. The accident occurred on 9/6/13,

6. The accident occurred when the plaintiff was caused to trip and fall into an
unguarded opening at the aforementioned premises due to construction debris and poor lighting.

7.8, & 9.

The accident occurred at the premises under construction known as New York

Yankee Steakhouse located at 7 West 51* Street, in the Borough of Manhattan, City and State of New
York,

10. The plaintiff was not operating machinery at the time of the accident.

11. The plaintiff was employed as a steamfitter at the time of the accident and was
walking when he was injured.

12. The plaintiff was walking at the time of the accident.

13. The plaintiff claims that he fell into an unguarded opening due to construction
debris and poor lighting.

14, The plaintiff claims that he fell into an unguarded opening due to construction

debris and poor lighting.
15. The plaintiff was walking on ground level.
16. Notice is not a requisite to recovery in an action based upon a violation of Labor Law

Section 240 and 241(6). However, both actual and constructive notice are alleged based upon the

violation of Labor Law Section 200 and common law negligence. The name of the person or personsto whom notice was given is not known at the present time and will be provided if and when it is
available.
Plaintiff reserves the right to supplement this response at a later date
17, The plaintiff claims that he fell into an unguarded opening due to construction
debris and poor lighting,
18. The plaintiff claims that he fell into an unguarded opening due to construction
debris and poor lighting.
19. & 20.
The plaintiff sustained the following injuries and ill effects therefrom, as a result of
the accident, including:
CERVICAL SPINE:
C5-6 diffuse spondylosis
2-3 broad based disc herniation;
C3-4 bilateral posterolateral disc osteophyte formation;
4-5 central disc herniation with bilateral posterolater spondylotic ridging;

C5-6 moderate broad based disc herniation with severe narrowing of the left neural
foramen;

Impingement upon the left C6 nerve root;
(6-7 broad based disc herniation;
Internal derangement,

Sprain/strain;

Restriction of motion;

Stiffness;Pain and tenderness;
*Injections required
“Future surgical intervention required
LUMBAR SPINE:
L4-5 broad based disc herniation with thecal sac compression and disc dessication;
L5-S1 broad based disc herniation.
Internal derangement;
Sprain/strain;
Restriction of motion;
Stiffness;
Pain and tenderness;
Pain radiating into the lower extremities;
Difficulty ambulating;
Antalgic gait.
THORACIC SPINE:
Internal derangement,
Sprain/strain;
Restriction of motion;
Pain and tenderness;
LEET SHOULDER:
Subacromial bursal fluid in subscapular recess of shoulder joint;

Thickening and fraying with increased intrasubstance signal of the distal
supraspinatus tendon;Tendonitis;

Grade I strain infraspinatus tendon;

Tear/fraying at the posterior superior glenoid labrum;
Internal derangement;

Sprain/strain;

Pain and tenderness;

Restriction of motion;

Stiffness;

Weakness.

* Surgical intervention required.

RIGHT SHOULDER:

Internal derangement,

Sprain/strain;

Restriction of motion;

Weakness;

Stiffmess;

“Injections required.
RIGHT HIP:

Internal derangement;

Sprain/strain;

Pain and tenderness;

Weakness;

Stiffness;Restriction of motion;

Difficulty ambulating.
LEFT HIP;

Internal derangement;
Sprain/strain;
Pain and tenderness;
Weakness;
Stiffness;
Restriction of motion;
Difficulty ambulating.

LEFT KNEE:

Intraligamentous ganglion cyst;
Reactive subchondral cystic change of tibial attachment;
Full thickness particular cartilage fissure of the medial facet at the patella;
Patellar tendonitis;
Internal derangement;
Sprain/strain;
Pain and tenderness;
Restriction of motion;
Difficulty ambulating
*Future surgical intervention required.
RIGHT KNEE:

Internal derangement;Sprain/strain;
Pain and tenderness;
Restriction of motion;
Difficulty ambulating
NECK:

Severe headache radiating from cervical spine

LEFT ANKLE:
Internal derangement;
Sprain/strain;
Restriction of motion;

Pain and tenderness;
Weakness;
Stiffness;
Swelling;
Difficulty ambulating
All of the above injuries were attended with extreme pain and suffering and have affected
plaintiff's bodily system in the skin, nerves, bones, tissues, tendons, muscles, blood vessels and other
tissues.
All of the above injuries and all affects therefrom are permanent in nature except those of
superficial nature.
All of the plaintiff's injuries have required extensive medical care, physical therapy and will
in the future require further medical care and treatment including physical therapy and the possible

need for further surgical intervention. Plaintiff's injuries were asymptomatic prior to the date ofaccident and or symptomatic and said accident has aggravated or exacerbated either an
asymptomatic condition or less symptomatic condition.

Plaintiff will require future surgeries to include but not limited to left shoulder and
left knee. Additionally, plaintiff will require continued orthopedic care, neurological care,
psychiatric care, hospitalization, physical therapy, medications and diagnostic exams. The present
value of the future medical care is $250,000.00, Said future medical care does not take into account
the inflation of the health care industry.

Plaintiff reserves the right to supplement and or amend his Bill of Particulars at a later date.
21. a. The plaintiff was not confined to a hospital following the accident’s
occurrence.

b. The plaintiff was confined to his bed and home for approximately 30 days
following the accident’s occurrence.

c The plaintiff was confined to his bed and home for approximately 30 days
following the accident’s occurrence,

22. a. &b.

The plaintiff has been totally incapacitated from employment from the date
of accident to date,

CG See response to a and b supra.

23. a. Plaintiff was employed as a steamfitter.

b. The plaintiff was employed by Day and Night Refrigeration also known as
Kimco Refrigeration, 10 Charles Street, New Hyde Park, New York 11040.

c. The plaintiff was earning $101.65 per hour in wages and benefits or $3,557.75

per week.d. The plaintiff has been totally incapacitated from employment from the date
of accident to date.

24, Plaintiff's counsel shall supplement this response upon receipt of this information
from the Workers’ Compensation Carrier.

25. The occurrence as aforesaid was caused solely and wholly by reason of the
negligence, carelessness and recklessness of the defendants, their contractors, agents and employees
who were negligent in the ownership, operation, management and control of the aforesaid premises.
While plaintiff was lawfully performing his duties, he was caused to sustain serious and severe
injuries when he fell and/or stepped into an unguarded opening. Said opening was hazardous and
dangerous and did not contain any planking, barricades, guard rails; there were no warnings
thereat; the illumination in the area was poor and efficient; further, there was dirt, debris and refuse
in the area. Defendants, their contractors, agents and employees failed to ensure that the jobsite was
properly illuminated; further, allowed dirt, debris and other refuse to be and remain in hallways,
passageways, thoroughfares and work areas causing dangerous and hazardous work conditions;
further, failed to properly protect dangerous and hazardous openings; further, failed to guard off,
barricade same; further, failed to have warnings thereat; further, allowed dangerous and hazardous
openings to exist in said work area; further, violated Sections 200, 240 and 241(6) of the Labor Law of
the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically but not
limited to 23-1.5, 23-1.7, 23-1.11, 23-1.15, 23-2.1, 23-2.2, 23-2.3, 23-2.4, 23-2.5, 1.30, 23-3, 23-4, 23-5, 23-
6, Article 1926 of O.S.H.A and was otherwise negligent, careless and reckless causing plaintiff to
sustain serious and severe injuries.

26. It is claimed that the defendants violated Labor Law § 240(1), § 241(6) and § 200 as

well as common law negligence; rules of O.S.H.A,, specifically §§ 1926.20, 1926.25, 1926.26, 1926.28,1926.34, 1926,95, 1926.104, 1926.105, 1926.200, 1926.201, 1926.202, 1926.250, 1926.251, 1926.252,
1926.500, 1926.501, 1926.502, Rule 23 of the Industrial Code of the State of New York, specifically

23-1.7 (a)(1)(2)(b)(1) (i) (ii) I) (@) (D(C) YAY):

23-1.11(a)(b)(c);

23-1.15(a)(b)(c(de);

23-1.16(a)(o)(c)(A}e)( HME)

23-1.17(a)(b)(c)(4)(e);

23-1.30;

23-2.1 (a)(1)2)(b);

23-2,2(a)(b)(c)(1)(2)(3)(d)\e);

23-2.4(a)(b)(1)()(4I)(2)(3)(C)(1)@2).

27. It is claimed that the defendants failed to remove construction debris from the areas
where the plaintiff had to work and pass and failed to properly illuminate the site for workers. In
addition to this claim, the defendants failed to properly cover and/or guard openings where the
plaintiff had to work and pass exposing him to tripping and falling into the unguarded opening and
were therefore negligence,

28. See response to No. 27 supra.

29. The plaintiff was working at the site as an employee of by Day and Night
Refrigeration also known as Kimco Refrigeration as a steamfitter.

30. The plaintiff has been unable to perform most of his activities since the date of the
accident due to the injuries he sustained in this accident. Any further information would be more

appropriately addressed at his deposition.31. The occurrence as aforesaid was caused solely and wholly by reason of the
negligence, carelessness and recklessness of the defendants, their contractors, agents and employees
who were negligent in the ownership, operation, management and control of the aforesaid premises.
While plaintiff was lawfully performing his duties, he was caused to sustain serious and severe
injuries when he fell and/or stepped into an unguarded opening. Said opening was hazardous and
dangerous and did not contain any planking, barricades, guard rails; there were no warnings
thereat; the illumiriation in the area was poor and efficient; further, there was dirt, debris and refuse
in the area. Defendants, their contractors, agents and employees failed to ensure that the jobsite was
properly illuminated; further, allowed dirt, debris and other refuse to be and remain in hallways,
passageways, thoroughfares and work areas causing dangerous and hazardous work conditions;
further, failed to properly protect dangerous and hazardous openings; further, failed to guard off,
barricade same; further, failed to have warnings thereat; further, allowed dangerous and hazardous
openings to exist in said work area; further, violated Sections 200, 240 and 241(6) of the Labor Law of
the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically but not
limited to 23-1.5, 23-1.7, 23-1.11, 23-1.15, 23-2.1, 23-2.2, 23-2.3, 23-2.4, 23-2.5, 1.30, 23-3, 23-4, 23-5, 23-
6, Article 1926 of O.S.H.A and was otherwise negligent, careless and reckless causing plaintiff to
sustain serious and severe injuries.

32. The third party defendant had a contract with the defendants.

33. Not appropriate for a Verified Bill of Particulars but would be more appropriately
addressed at the plaintiff's deposition.

34. The defendants failed to cover dangerous and hazardous openings at the site.

35. The defendants failed to provide guards or barricades to protect against exposed

openings.36. Defendants failed to any warnings whatsoever to alert the plaintifs of the existence of
the exposed openings.

37. The defendants failed to properly cover and/or barricade and/or notify the plaintiff
of exposed openings at the site.

38. See prior answers in this Verified Bill of Particulars.

39, Plaintiff was free from comparative negligence as he did not create the conditions
given rise to the accident. ,

DATED: NEW YORK, NEW YORK
July 13, 2015 .
Yours, etc.

SACKS AND SACKS, LLR.

By: } c f
ANDREW R, DIAMOND, ESQ.
Attorneys for Plaintiff(s)

150 Broadway - 4th Floor

New York, NY 10038

(212) 964-5570

TO:

MILBER, MAKRIS, PLOUSADIS, SEIDEN
Attorneys for Defendant

DAY & NITE REFRIGERATION CORP. and
KIMCO REFRIGERATION CORP.

1000 Woodbury Road

Woodbury, NY 11797

(516)712-4000

FABIANI COHEN & HALL, LLP
Attorneys for Defendants

NYY STEAK MANHATTAN, LLC and
PLAZA CONSTRUCTION CORP.

570 Lexington Avenue, 4th Floor

New York, New York 10022

(212) 644-4420LAW OFFICES OF CHARLES J. SIEGEL
Attorneys for Third-Party Defendant
BARING INDUSTRIES, INC.

125 Broad Street-7 Floor

New York, New York 10004ATTORNEY'S VERIFICATION
ANDREW R, DIAMOND, ESQ, an attorney duly admitted to practice in the Courts
of this State, affirms the following under the penalties of perjury:

I am an attorney associated with the firm of SACKS AND SACKS, LLP, attorneys for the
plaintiff(s) in the instant action. That he has read the foregoing VERIFIED BILL OF
PARTICULARS knows the contents thereof, and upon information and belief, deponent believes
the matters alleged therein to be true.

The reason for this verification is made by deponent and not by plaintiff is that the plaintiff
is in a County other than the one in which plaintiff's attorneys maintain theit office.

The source of deponent's information and the grounds of his belief are communications,
papers, reports and investigations contained in this file.

DATED: NEW YORK, NEW YORK
July 13, 2015 .

} c!
ANDREW R. DIAMOND, ESQ.SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

KEVIN McGONIGAL,

Index No.: 158327/2013

Plaintiff(s),
-against-

NYY STEAK MANHATTAN, LLC,
PLAZA CONSTRUCTION CORP. and
BARING INDUSTRIES, INC,,

Defendant(s).

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PLAZA CONSTRUCTION CORP,,

Third party plaintiff(s),
-against-
BARING INDUSTRIES, INC.,
Third party defendant(s),

BARING INDUSTRIES, INC,

Second Third party plaintiff(s),
-against-

DAY & NITE REFRIGERATION CORP. and
KIMCO REFRIGERATION CORP.

Second Third party defendant(s).

VERIFIED BILL OF PARTICULARS

Sacks and Sacks, LLP
150 Broadway, 4" Floor
New York, New York 10038
T: (212) 964-5570
F; (212) 349-2141SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK
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KEVIN McGONIGAL, VERIFIED BILL OF
PARTICULARS
Plaintiff(s),
Index No.: 158327/2013
-against-

NYY STEAK MANHATTAN, LLC, and PLAZA
CONSTRUCTION CORP.,

Defendant(s).

PLAZA CONSTRUCTION CORP.,

Third party plaintiff(s),
-against-
BARING INDUSTRIES, INC.,
Third party defendant(s).

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ATTORNEYS:

PLEASE TAKE NOTICE that the plaintiff, by his attorneys, SACKS AND SACKS, LLP,
responds to the demand for a Verified Bill of Particulars, by the defendants, NYY STEAK

MANHATTAN, LLC and PLAZA CONSTRUCTION CORP,, based upon information and belief as

follows:
1. Plaintiff is 36 years of age; date of birth 8/29/1977; Social Sec. No.: 091-64-4776.
2. The accident occurred on 9/6/13.
3. The accident occurred approximately at 8:00 a.m,
4. The accident occurred at the premises under construction known as New York

Yankee Steakhouse located at 7 West 51* Street, in the Borough of Manhattan, City and State of New

York.5. The occurrence as aforesaid was caused solely and wholly by reason of the
negligence, carelessness and recklessness of the defendants, their contractors, agents and employees
who were negligent in the ownership, operation, management and control of the aforesaid premises.
While plaintiff was lawfully performing his duties, he was caused to sustain serious and severe
injuries when he fell and/or stepped into an unguarded opening. Said opening was hazardous and
dangerous and did not contain any planking, barricades, guard rails; there were no warnings
thereat; the illumination in the area was poor and efficient; further, there was dirt, debris and refuse
in the area. Defendants, their contractors, agents and employees failed to ensure that the jobsite was
properly illuminated; further, allowed dirt, debris and other refuse to be and remain in hallways,
passageways, thoroughfares and work areas causing dangerous and hazardous work conditions;
further, failed to properly protect dangerous and hazardous openings; further, failed to guard off,
barricade same; further, failed to have warnings thereat; further, allowed dangerous and hazardous
openings to exist in said work area; further, violated Sections 200, 240 and 241(6) of the Labor Law of
the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically but not
limited to 23-1.5, 23-1.7, 23-1.11, 23-1.15, 23-2.1, 23-2.2, 23-2.3, 23-2.4, 23-2.5, 1.30, 23-3, 23-4, 23-5, 23-
6, Article 1926 of O.S.H.A and was otherwise negligent, careless and reckless causing plaintiff to
sustain serious and severe injuries.

6. The accident occurred when the plaintiff was caused to trip and fall into an
unguarded opening at the aforementioned premises due to construction debris.

7. The occurrence as aforesaid was caused solely and wholly by reason of the
negligence, carelessness and recklessness of the defendants, their contractors, agents and employees
who were negligent in the ownership, operation, management and control of the aforesaid premises.

While plaintiff was lawfully performing his duties, he was caused to sustain serious and severeinjuries when he fell and/or stepped into an unguarded opening. Said opening was hazardous and
dangerous and did not contain any planking, barricades, guard rails; there were no warnings
thereat; the illumination in the area was poor and efficient; further, there was dirt, debris and refuse
in the area, Defendants, their contractors, agents and employees failed to ensure that the jobsite was
properly illuminated; further, allowed dirt, debris and other refuse to be and remain in hallways,
passageways, thoroughfares and work areas causing dangerous and hazardous work conditions;
further, failed to properly protect dangerous and hazardous openings; further, failed to guard off,
barricade same; further, failed to have warnings thereat; further, allowed dangerous and hazardous
openings to exist in said work area; further, violated Sections 200, 240 and 241(6) of the Labor Law of
the State of New York, Rule 23 of the Industrial Code of the State of New York, specifically but not
limited to 23-1.5, 23-1.7, 23-1.11, 23-1.15, 23-2\1, 23-2.2, 23-2.3, 23-2.4, 23-2.5, 1.30, 23-3, 23-4, 23-5, 23-
6, Article 1926 of O.S.H.A and was otherwise negligent, careless and reckless causing plaintiff to
sustain serious and severe injuries. Notice is not a requisite to recovery in an action based upon a
violation of Labor Law Section 240 and 241(6). However, both actual and constructive notice are
alleged based upon the violation of Labor Law Section 200 and common law negligence. The name
of the person or persons to whom notice was given is not known at the present time and will be
provided if and when it is available.

Plaintiff reserves the right to supplement this response at a later date.

8. Please see answer number 7, supra.
9. Please see answer number 5, supra.
10. The accident occurred as the plaintiff was walking in a poorly and dimly lit

hallway when he was caused to trip and fall on construction debris into an unguarded opening.11. The plaintiff sustained the following injuries and ill effects therefrom, as a result

of the accident, including:
CERVICAL SPINE:

C5-6 diffuse spondylosis

2-3 broad based disc herniation;

C3-4 bilateral posterolateral disc osteophyte formation;

C45 central disc herniation with bilater posterolater spondylotic ridging;

C5-6 moderate broad based disc herniations with severe narrowing of the left neural
foramen;

Impingement upon the left C6 nerve root;

6-7 broad based disc herniation;

Internal derangement;

Sprain/strain;

Restriction of motion;

Stiffness;

Pain and tenderness;

“Injections required

*Puture surgical intervention required

LUMBAR SPINE:

4-5 broad based disc herniation with thecal sac compression and disc dessication;

L5-S1 broad based disc herniation.

Internal derangement;

Sprain/strain;Restriction of motion;
Stiffness;
Pain and tenderness;
Paid radiating into the lower extremities;
Difficulty ambulating;
Antalgic gait.
THORACIC SPINE:
Internal derangement;
Sprain/strain;
Restriction of motion;
Pain and tenderness;
LEFT SHOULDER:
Subacromial bursal fluid in subscapular recess of shoulder joint;
Thickening and fraying with increased intrasubstance signal of the distal supraspinatus
tendon;
Tendonosis;
Grade I strain infraspinatus tendon;
Tear/fraying at the posterior superior glenoid labrum;
Internal derangement;
Sprain/strain;
Pain and tenderness;
Restriction of motion;

Stiffness;Weakness,

* Surgical intervention required.
RIGHT SHOULDER:

Internal derangement;

Sprain/strain;

Restriction of motion;

Weakness;

Stiffness;

“Injections required.

RIGHT HIP:
Internal derangement;
Sprain/strain;
Pain and tenderness;
Weakness;
Stiffness;
Restriction of motion;

Difficulty ambulating.

LEFT HIP:
internal derangement;
Sprain/strain;

Pain and tenderness;Weakness;

Stiffness;

Restriction of motion;
Difficulty ambulating.

LEFT KNEE:
Intraligamentous ganglion cyst;
Reactive subchondral cystic change of tibial attachment;
Full thickness particular cartilage fissure of the medial facet at the patella;
Patellar tendonitis;

Internal derangement;

Sprain/strain;

Pain and tenderness;

Restriction of motion;

Difficulty ambulating

*Future surgical intervention required.

RIGHT KNEE:
Internal derangement;

Sprain/strain;

Pain and tenderness;

Restriction of motion;

Difficulty ambulating
NECK:

Severe headache radiating from cervical spineLEFT ANKLE:
Internal derangement;
Sprain/strain;
Restriction of motion;
Pain and tenderness;
Weakness;
Stiffness;
Swelling;
Difficulty ambulating

All of the above injuries were attended with extreme pain and suffering and have
effected plaintiff's bodily system in the skin, nerves, bones, tissues, tendons, muscles, blood vessels
and other tissues.

All of the above injuries and all affects therefrom are permanent in nature except
those of superficial nature.

All of the plaintiff's injuries have required extensive medical care, physical therapy
and will in the future require further medical care and treatment including physical therapy and the
possible need for further surgical intervention, Plaintiff's injuries were asymptomatic prior to the
date of accident and or symptomatic and said accident has aggravated. or exacerbated either an
asymptomatic condition or less symptomatic condition.

Plaintiff will require future surgeries to include but not limited to left shoulder and
left knee. Additionally, plaintiff will require continued orthopedic care, neurological care,

psychiatric care, hospitalization, physical therapy, medications and diagnostic exams. The presentvalue of the future medical care is $1;000,000.00. Said future medical care does not take into account
the inflation of the health care industry.

Plaintiff reserves the right to supplement and or amend his Bill of Particulars at a later date.

12.
a, The plaintiff was employed by Day and Night Refrigeration also known as
Kimco Refrigeration, 10 Charles Street, New Hyde Park, New York 11040.
b. The plaintiff has been totally incapacitated from employment from the date
of accident to date,
c The plaintiff was earning $101.65 per hour in wages and benefits or $3,557.75
per week.
d. Wage loss through August 13, 2014 totals approximately $170,772.00. Please
be advised that wage loss is continuing indefinitely.
13. The plaintiff was not a student at the time of the accident,
14, The plaintiff was not confined to a hospital following the accident’s occurrence.
15, The plaintiff received medical treatment from Dr. Steven Touliopoulos.
16. The plaintiff was confined to his bed and home for approximately 30 days

following the accident’s occurrence.

17. Plaintiff's counsel shall supplement this response upon receipt of this
information from the Workers’ Compensation Carrier.

18, Please see answer number 17, supra.

19, Plaintiff resides at 117 Chrisjan Drive, East Stroudsburg, PA 18301.

20. There is no claim for loss of services.21. It is claimed that the defendants violated Labor Law § 240(1), § 241(6) and § 200
as well as common law negligence; rules of O.S.H.A,, specifically §§ 1926.20, 1926.25, 1926.26,
1926.28, 1926.34, 1926.95, 1926.104, 1926105, 1926.200, 1926.201, 1926.202, 1926.250, 1926.251,
1926.252, 1926.500, 1926.501, 1926.502, Rule 23 of the Industrial Code of the State of New York,
specifically 23-1.7 —_ (a)(1)(2)(b)(1) (A) GG) (YY G(AY(E)AZ)(, — 23-1.11(a)(o)(c),_ 23-
1.15(a)(b\(eMdy(e), 23-1.16(a)(b}(e)(d)(e\(HGA)2), 23-1.17(a)(bY(c)(d)(e), 23-1.30, 23-2.1 (a)(1)(2)(b), 23-
2.2(a)(b)(c)(1)(2)(3)(4)(e), 23-2.4(a)(\ A) ZBMODE).

22. It is claimed that the defendants failed to remove construction debris from the
areas where the plaintiff had to work and pass and failed to properly illuminate the site for workers,
In addition to this claim, the defendants failed to properly cover and/or guard openings where the
plaintiff had to work and pass exposing him to tripping and falling into the unguarded opening and
were therefore negligence.

23. It is claimed that the defendants violated Labor Law Section 240 by failing to
cover an opening creating a falling hazard by which the plaintiff fell after he was caused to trip and
fall in a dimly lit area.

24. It is claimed that the defendants violated Labor Law Section 241(6) in accordance
with the claimed Industrial Code violations herein (see 21, supra.), by failing to provide the plaintiff
with a safe place to work allowing for the accumulation of construction debris in a poorly lit area
where people work and pass resulting in his trip and fall into an unguarded opening.

DATED: NEW YORK, NEW YORK
October 20, 2014Yours, etc.
SACKS AND SACKS, LLP

By:

ANDREW R. DIAMOND, ESQ.
Attorneys for Plaintiff(s)

150 Broadway - 4th Floor

New York, NY 10038

(212) 964-5570

TO:

FABIANI COHEN & HALL, LLP
Attorneys for Defendants

NYY STEAK MANHATTAN, LLC and
PLAZA CONSTRUCTION CORP.

570 Lexington Avenue, 4th Floor

New York, New York 10022

Tel: (212) 644-4420

LAW OFFICES OF CHARLES J. SIEGEL
Attorneys for Third-Party Defendant
BARING INDUSTRIES, INC.

125 Broad Street-7* Floor

New York, New York 10004

Attention: Nikolaos E. Diamantis, Esq.ATTORNEY'S VERIFICATION

ANDREW R. DIAMOND, ESQ. an attorney duly admitted to practice in the Courts
of this State, affirms the following under the penalties of perjury:

T am an attorney associated with the firm of SACKS AND SACKS, LLP, attorneys for the
plaintiff(s) in the instant action. That he has read the foregoing VERIFIED BILL OF
PARTICULARS knows the contents thereof, and upon information and belief, deponent believes
the matters alleged therein to be true.

The reason for this verification is made by deponent and not by plaintiff is that the plaintiff
is in a County other than the one in which plaintiff's attorneys maintain their office.

The source of deponent's information and the grounds of his belief are communications,
papers, reports and investigations contained in this file.

DATED: New York, New York
October 20, 2014

ANDREW R. DIAMOND, ESQ.SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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KEVIN McGONIGAL,
Plaintiff(s), Index No.: 158327/2013

-against-

NYY STEAK MANHATTAN, LLC and PLAZA
CONSTRUCTION CORP.,

Defendant(s).

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PLAZA CONSTRUCTION CORP.,,

Third party plaintiff(s),
-against-
BARING INDUSTRIES, INC.,

Third party defendant(s),

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VERIFIED BILL OF PARTICULARS

Sacks and Sacks, LLP
150 Broadway, 4** Floor
New York, New York 10038
T: (212) 964-5570
F; (212) 349-2141