Preview
FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019
EXHIBIT I
FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019
242
1
2 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
3 ------------------------------------------X
KEVIN McGONIGAL,
4
PLAINTIFF,
5
-against- Index No.:
6 158327/2013
7 NYY STEAK MANHATTAN, LLC, PLAZA
CONSTRUCTION CORP. and BARING
8 INDUSTRIES, INC.,
9 DEFENDANTS.
______________________________------------X
10 PLAZA CONSTRUCTION CORP.,
11 THIRD-PARTY PLAINTIFF,
12 -against-
13 BARING INDUSTRIES, INC.,
14 THIRD-PARTY DEFENDANT.
_____________________---------------------X
15 BARING INDUSTRIES, INC.,
16 SECOND THIRD-PARTY PLAINTIFF,
17 -against-
18 DAY & NITE REFRIGERATION CORP. and
KIMCO REFRIGERATION CORP.,
19
SECOND THIRD-PARTY DEFENDANTS.
20 ------------------------------------------X
(Caption continues)
21
22 DATE: November 14, 2016
23 TIME: 10:15 A.M.
24
25 (DEPOSTION of KEVIN McGONIGAL)
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1
2 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
3 ------------------------------------------X
NYY STEAK MANHATTAN, LLC & PLAZA
4 CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCTION CORP.,
5
THIRD THIRD-PARTY PLAINTIFFS,
6
7 -against-
8
B&G ELECTRICAL CONTRACTORS, ESS & VEE
9 ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.,
10
THIRD THIRD-PARTY DEFENDANTS.
11 ------------------------------------------X
12
13 DATE: November 14, 2016
14 TIME: 10:15 A.M.
15
16
17 CONTINUED EXAMINATION BEFORE
18 TRIAL of the Plaintiff, KEVIN McGONIGAL,
19 taken by the respective parties, pursuant
20 to a Court Order, held at the offices of
21 Sacks and Sacks, LLP, 150 Broadway, 4th
22 Floor, New York, New York 10038, before
23 Joann Rizzi, a Notary Public of the State
24 of New York.
25
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1
2 A P P E A R A N C E S:
3
4 SACKS and SACKS, LLP
Attorneys for the Plaintiff
5 KEVIN McGONIGAL
150 Broadway, 4th Floor
6 New York, New York 10038
BY : ANDREW R. DIAMOND, ESQ .
7 adiamond@sacks-sacks.com
8
9 FABIANI COHEN & HALL , LLP
Attorneys for the Defendants/Third-Party
10 Plaintiff//Third Third-Party Plaintiffs
NYY STEAKMANHATTAN, LLC, and
11 PLAZA CONSTRUCTION CORP.
570 Lexington Avenue, 4th Floor
12 New York, New York 10022
BY: PATRICK AURILIA, ESQ.
13 File #: 731.37312
auriliap@fcllp.com
14
15
LAN OFFICES OF CHARLES J. SIEGEL
16 Attorneys for the Defendant/Third-Party
Defendant/Second Third-Party
17 Plaintiff/Third Third-Party Defendant
BARING INDUSTRIES, INC.
18 125 Broad Street - 7th Floor
New York, New York 10004
19 BY : NIKOLAOS E . DIAMANTIS , ESQ .
nikolaos.diamantis@cna.com
20
21
22
23
24
(Appearances continued on the next page.)
25
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1
2 A P P E A R A N C E S: (Continued)
3
4 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
Attorneys for the Second Third-Party
5 Defendants
DAY & NITE REFRIGERATION CORP. and
6 KIMCO REFRIGERATION CORP.
1000 Woodbury Road, Suite 402
7 Woodbury, New York 11797
BY: DAVID A. LORE, ESQ.
8 dlore@milbermakris.com
9
10 VIGORITO, BARKER, PORTER & PATTERSON, LLP
Attorneys for the Third Third-Party
11 Defendant
B&G ELECTRICAL CONTRACTORS
12 115 Stevens Avenue, 2nd Floor
Valhalla, New York 10595
13 BY: EILEEN R. FULLERTON, ESQ.
efullerton@vbpplaw.com
14
15
SMITH MAZURE DIRECTOR WILKINS
1 6 YOUNG & YAGERMAN, P . C .
Attorneys for the Third Third-Party Defendant
17 ESS & VEE ACOUSTICAL CONTRACTORS, INC.
111 John Street
18 New York, New York 10038
BY: ROBERT J. PALISENO, ESQ.
19 rpaliseno@smithmazure.com
20
21
22
* * *
23
24
25
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1
2 221. UNIFORM RULES FOR THE
CONDUCT OF DEPOSITIONS
3 221.1 Objections at Depositions
(a) Objections in general. No objections
4 shall be made at a deposition except those
which, pursuant to subdivision (b), (c) or
5 (d) of Rule 3115 of the Civil Practice Law
and Rules, would be waived if not
6 interposed, and except in compliance with
súbdivision (e) of such rule. All
7 objections made at a deposition shall be
noted by the officer before whom the
8 deposition is taken, and the maswer shall
be given and the deposition shall proceed
9 subject to the objections and to the right
of a person to apply for appropriate relief
10 pursuant to Article 31 of the CPLR.
(b) Speaking objections restricted. Every
11 objection raised during a deposition shall
be stated succinctly and framed so as not
12 to suggest an answer to the deponent and,
at the request of the questioning attorney,
13 shall include a clear statement as to any
defect in form or other basis of error or
14 irregularity. Except to the extent
permitted by CPLR Rule 3115 or by this
15 rule, during the course of the examination
persons in attendance shall not make
16 statements or comments that interfere with
the questioning.
17 221.2 Refusal to answer when objection is
made. A deponent shall answer all questions
18 at a deposition, except (i) to preserve a
privilege or right of confidentiality, (ii)
19 to enforce a limitation set forth in an
order of the court, or (iii) when the
20 question is plainly improper and would, if
answered, cause significant prejudice to
21 any person. An attorney shall not direct
a deponent not to answer except as provided
22 in CPLR Rule 3115 or this subdivision.
Any refusal to answer or direction not to
23 answer shall be accompanied by a succinct
and clear statement of the basis therefor.
24 If the deponent does not answer a question,
the examining party shall have the right to
25 complete the remainder of the deposition.
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1
2 221. UNIFORM RULES FOR THE
CONDUCT OF DEPOSITIONS
3
221.3 Communication with the deponent
4 An attorney shall not interrupt the
deposition for the purpose of communicating
5 with the deponent unless all parties
consent or the communication is made for
6 the purpose of
determining whether the
question should not be answered on the
7 grounds set forth in section 221.2 of these
rules and, in such event, the reason for
8 the communication shall be stated for the
record succinctly and clearly.
9
10 IT IS FURTHER STIPULATED AND AGREED
that the transcript may be signed before
11 any Notary Public with the same force and
effect as if signed before a clerk or a
12 Judge of the court.
13
IT IS FURTHER STIPULATED AND AGREED
14 that the examination before trial may be
utilized for all purposes as provided by
15 the CPLR.
16
IT IS FURTHER STIPULATED AND AGREED
17 that all rights provided to all parties by
the CPLR cannot be deemed waived and the
18 appropriate sections of the CPLR shall be
controlling with respect hereto.
19
20 IT IS FURTHER STIPULATED AND AGREED
by and between the attorneys for the
21 respective parties hereto that a copy of
this examination shall be furnished,
22 without charge, to the attorneys
representing the witness testifying herein.
23
24
25
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1 K. McGONIGAL
2 K E V I N M c G O N I G A L, called as a
3 witness, having been first duly sworn by a
4 Notary Public of the State of New York, was
5 examined and testified as follows:
6 EXAMINATION BY
7 MR. AURILIA:
8 Q. Please state your name for the
9 record.
10 A. Kevin McGonigal.
11 Q. What is your address?
::
,,....ammm!r
14 Q. Good morning, sir.
15 A. Good morning.
16 Q. This is a continuation, as you
17 know, of your deposition which began
18 sometime last week.
19 A. Yes.
20 Q. A.t any point during your
21 treatment for injuries resulting from the
22 accident, did anyone, health care provider
23 or a doctor, provide you with canes or
24 braces or things of that nature to use?
25 A. Yes.
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1 K. McGONIGAL
2 Q. What device was it?
3 A. Knee brace.
4 Q. For which knee?
5 A. My right knee.
6 Q. Who provided you with that knee
7 brace?
8 A. Dr. T.
9 Q. Touliopoulos?
10 A. Touliopoulos, yes.
11 Q. Do you know when he provided
12 you with that brace?
13 A. I believe it was the day of the
14 accident.
15 Q. Could you briefly describe how
16 that brace looked physically?
17 A. It was black, it was like a
18 spandex material, and it had two hard
19 plastic pieces on either side.
20 Q. Okay.
21 Was it Velcro straps?
22 A. Yes.
23 Q. Did he give you any
24 instructions or directions on how to
25 utilize that brace?
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1 K. McGONIGAL
2 A. I don't recall.
3 Q. Did you utilize that brace?
4 A. I did.
5 Q. How so?
6 A. I wore the brace.
7 Q. With what frequency?
8 A. Quite often.
9 Q. Did you wear it to bed, did you
10 wear it all day long, something else?
11 A. During the day.
12 Q. You would take it off in the
13 evening?
14 A. Yes.
15 Q. Did you wear it when you went
16 back to work?
17 A. No, I did not.
18 Q. Do you know for what period of
19 time you wore that brace, from the date of
20 the accident until when?
21 A. I don't recall.
22 Q. Did you stop wearing it before
23 you returned to work?
24 A. Yes.
25 Q. Do you recall approximately how
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1 K. McGONIGAL
2 long before you returned to work that you
3 stopped wearing it?
4 A. No, I don't.
5 Q. Do you still have that brace?
6 A. I don't know.
7 MR. AURILIA: I ask that you
8 just conduct a search for it, and if
9 you find it, just hold onto it or
10 give it to your attorney, don't
11 dispose of it.
12 Q. Did any doctor or health care
13 provider provide you with any other type of
14 device, any other type of brace, any other
15 type of cane or anything of that nature?
16 A. No.
17 Q. Did you have a prior hernia
18 condition? *
19 A. Yes.
20 Q. When was that?
21 A. I don't recall the dates when
22 that was.
23 Q. If I told you it was sometime
24 in 2006, would that refresh your memory?
25 A. Yes.
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1 K. McGONIGAL
2 Q. Were you out of work for some
3 time as a result?
4 A. Yeah.
5 Q. Did that affect your ability,
6 when returning to work, to perform the
7 work?
8 A. No.
9 Q. Do you recall how long you were
10 out of work with that particular condition?
11 A. I don't recall exactly.
12 Q. Did you have a surgery for that
13 condition?
14 A. Yes.
15 Q. Was it one surgery or multiple?
16 A. Multiple.
17 Q. Do you remember how many?
18 A. Two.
19 Q. Do you know how far apart they
20 were in time?
21 A. I cannot -- I don't recall
22 exactly. It was roughly a year.
23 Q. And were you out of work on
24 both of those occasions, following both of
25 those surgeries?
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FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 228
Preview
FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 EXHIBIT I FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 242 1 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 3 ------------------------------------------X KEVIN McGONIGAL, 4 PLAINTIFF, 5 -against- Index No.: 6 158327/2013 7 NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING 8 INDUSTRIES, INC., 9 DEFENDANTS. ______________________________------------X 10 PLAZA CONSTRUCTION CORP., 11 THIRD-PARTY PLAINTIFF, 12 -against- 13 BARING INDUSTRIES, INC., 14 THIRD-PARTY DEFENDANT. _____________________---------------------X 15 BARING INDUSTRIES, INC., 16 SECOND THIRD-PARTY PLAINTIFF, 17 -against- 18 DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., 19 SECOND THIRD-PARTY DEFENDANTS. 20 ------------------------------------------X (Caption continues) 21 22 DATE: November 14, 2016 23 TIME: 10:15 A.M. 24 25 (DEPOSTION of KEVIN McGONIGAL) DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 242 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 243 1 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK 3 ------------------------------------------X NYY STEAK MANHATTAN, LLC & PLAZA 4 CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., 5 THIRD THIRD-PARTY PLAINTIFFS, 6 7 -against- 8 B&G ELECTRICAL CONTRACTORS, ESS & VEE 9 ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., 10 THIRD THIRD-PARTY DEFENDANTS. 11 ------------------------------------------X 12 13 DATE: November 14, 2016 14 TIME: 10:15 A.M. 15 16 17 CONTINUED EXAMINATION BEFORE 18 TRIAL of the Plaintiff, KEVIN McGONIGAL, 19 taken by the respective parties, pursuant 20 to a Court Order, held at the offices of 21 Sacks and Sacks, LLP, 150 Broadway, 4th 22 Floor, New York, New York 10038, before 23 Joann Rizzi, a Notary Public of the State 24 of New York. 25 DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 243 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 244 1 2 A P P E A R A N C E S: 3 4 SACKS and SACKS, LLP Attorneys for the Plaintiff 5 KEVIN McGONIGAL 150 Broadway, 4th Floor 6 New York, New York 10038 BY : ANDREW R. DIAMOND, ESQ . 7 adiamond@sacks-sacks.com 8 9 FABIANI COHEN & HALL , LLP Attorneys for the Defendants/Third-Party 10 Plaintiff//Third Third-Party Plaintiffs NYY STEAKMANHATTAN, LLC, and 11 PLAZA CONSTRUCTION CORP. 570 Lexington Avenue, 4th Floor 12 New York, New York 10022 BY: PATRICK AURILIA, ESQ. 13 File #: 731.37312 auriliap@fcllp.com 14 15 LAN OFFICES OF CHARLES J. SIEGEL 16 Attorneys for the Defendant/Third-Party Defendant/Second Third-Party 17 Plaintiff/Third Third-Party Defendant BARING INDUSTRIES, INC. 18 125 Broad Street - 7th Floor New York, New York 10004 19 BY : NIKOLAOS E . DIAMANTIS , ESQ . nikolaos.diamantis@cna.com 20 21 22 23 24 (Appearances continued on the next page.) 25 DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 244 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 245 1 2 A P P E A R A N C E S: (Continued) 3 4 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Attorneys for the Second Third-Party 5 Defendants DAY & NITE REFRIGERATION CORP. and 6 KIMCO REFRIGERATION CORP. 1000 Woodbury Road, Suite 402 7 Woodbury, New York 11797 BY: DAVID A. LORE, ESQ. 8 dlore@milbermakris.com 9 10 VIGORITO, BARKER, PORTER & PATTERSON, LLP Attorneys for the Third Third-Party 11 Defendant B&G ELECTRICAL CONTRACTORS 12 115 Stevens Avenue, 2nd Floor Valhalla, New York 10595 13 BY: EILEEN R. FULLERTON, ESQ. efullerton@vbpplaw.com 14 15 SMITH MAZURE DIRECTOR WILKINS 1 6 YOUNG & YAGERMAN, P . C . Attorneys for the Third Third-Party Defendant 17 ESS & VEE ACOUSTICAL CONTRACTORS, INC. 111 John Street 18 New York, New York 10038 BY: ROBERT J. PALISENO, ESQ. 19 rpaliseno@smithmazure.com 20 21 22 * * * 23 24 25 DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 245 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 246 1 2 221. UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS 3 221.1 Objections at Depositions (a) Objections in general. No objections 4 shall be made at a deposition except those which, pursuant to subdivision (b), (c) or 5 (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not 6 interposed, and except in compliance with súbdivision (e) of such rule. All 7 objections made at a deposition shall be noted by the officer before whom the 8 deposition is taken, and the maswer shall be given and the deposition shall proceed 9 subject to the objections and to the right of a person to apply for appropriate relief 10 pursuant to Article 31 of the CPLR. (b) Speaking objections restricted. Every 11 objection raised during a deposition shall be stated succinctly and framed so as not 12 to suggest an answer to the deponent and, at the request of the questioning attorney, 13 shall include a clear statement as to any defect in form or other basis of error or 14 irregularity. Except to the extent permitted by CPLR Rule 3115 or by this 15 rule, during the course of the examination persons in attendance shall not make 16 statements or comments that interfere with the questioning. 17 221.2 Refusal to answer when objection is made. A deponent shall answer all questions 18 at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) 19 to enforce a limitation set forth in an order of the court, or (iii) when the 20 question is plainly improper and would, if answered, cause significant prejudice to 21 any person. An attorney shall not direct a deponent not to answer except as provided 22 in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to 23 answer shall be accompanied by a succinct and clear statement of the basis therefor. 24 If the deponent does not answer a question, the examining party shall have the right to 25 complete the remainder of the deposition. DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 246 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 247 1 2 221. UNIFORM RULES FOR THE CONDUCT OF DEPOSITIONS 3 221.3 Communication with the deponent 4 An attorney shall not interrupt the deposition for the purpose of communicating 5 with the deponent unless all parties consent or the communication is made for 6 the purpose of determining whether the question should not be answered on the 7 grounds set forth in section 221.2 of these rules and, in such event, the reason for 8 the communication shall be stated for the record succinctly and clearly. 9 10 IT IS FURTHER STIPULATED AND AGREED that the transcript may be signed before 11 any Notary Public with the same force and effect as if signed before a clerk or a 12 Judge of the court. 13 IT IS FURTHER STIPULATED AND AGREED 14 that the examination before trial may be utilized for all purposes as provided by 15 the CPLR. 16 IT IS FURTHER STIPULATED AND AGREED 17 that all rights provided to all parties by the CPLR cannot be deemed waived and the 18 appropriate sections of the CPLR shall be controlling with respect hereto. 19 20 IT IS FURTHER STIPULATED AND AGREED by and between the attorneys for the 21 respective parties hereto that a copy of this examination shall be furnished, 22 without charge, to the attorneys representing the witness testifying herein. 23 24 25 DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 247 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 248 1 K. McGONIGAL 2 K E V I N M c G O N I G A L, called as a 3 witness, having been first duly sworn by a 4 Notary Public of the State of New York, was 5 examined and testified as follows: 6 EXAMINATION BY 7 MR. AURILIA: 8 Q. Please state your name for the 9 record. 10 A. Kevin McGonigal. 11 Q. What is your address? :: ,,....ammm!r 14 Q. Good morning, sir. 15 A. Good morning. 16 Q. This is a continuation, as you 17 know, of your deposition which began 18 sometime last week. 19 A. Yes. 20 Q. A.t any point during your 21 treatment for injuries resulting from the 22 accident, did anyone, health care provider 23 or a doctor, provide you with canes or 24 braces or things of that nature to use? 25 A. Yes. DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 248 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 249 1 K. McGONIGAL 2 Q. What device was it? 3 A. Knee brace. 4 Q. For which knee? 5 A. My right knee. 6 Q. Who provided you with that knee 7 brace? 8 A. Dr. T. 9 Q. Touliopoulos? 10 A. Touliopoulos, yes. 11 Q. Do you know when he provided 12 you with that brace? 13 A. I believe it was the day of the 14 accident. 15 Q. Could you briefly describe how 16 that brace looked physically? 17 A. It was black, it was like a 18 spandex material, and it had two hard 19 plastic pieces on either side. 20 Q. Okay. 21 Was it Velcro straps? 22 A. Yes. 23 Q. Did he give you any 24 instructions or directions on how to 25 utilize that brace? DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 249 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 250 1 K. McGONIGAL 2 A. I don't recall. 3 Q. Did you utilize that brace? 4 A. I did. 5 Q. How so? 6 A. I wore the brace. 7 Q. With what frequency? 8 A. Quite often. 9 Q. Did you wear it to bed, did you 10 wear it all day long, something else? 11 A. During the day. 12 Q. You would take it off in the 13 evening? 14 A. Yes. 15 Q. Did you wear it when you went 16 back to work? 17 A. No, I did not. 18 Q. Do you know for what period of 19 time you wore that brace, from the date of 20 the accident until when? 21 A. I don't recall. 22 Q. Did you stop wearing it before 23 you returned to work? 24 A. Yes. 25 Q. Do you recall approximately how DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 250 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 251 1 K. McGONIGAL 2 long before you returned to work that you 3 stopped wearing it? 4 A. No, I don't. 5 Q. Do you still have that brace? 6 A. I don't know. 7 MR. AURILIA: I ask that you 8 just conduct a search for it, and if 9 you find it, just hold onto it or 10 give it to your attorney, don't 11 dispose of it. 12 Q. Did any doctor or health care 13 provider provide you with any other type of 14 device, any other type of brace, any other 15 type of cane or anything of that nature? 16 A. No. 17 Q. Did you have a prior hernia 18 condition? * 19 A. Yes. 20 Q. When was that? 21 A. I don't recall the dates when 22 that was. 23 Q. If I told you it was sometime 24 in 2006, would that refresh your memory? 25 A. Yes. DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 251 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228 RECEIVED NYSCEF: 01/23/2019 252 1 K. McGONIGAL 2 Q. Were you out of work for some 3 time as a result? 4 A. Yeah. 5 Q. Did that affect your ability, 6 when returning to work, to perform the 7 work? 8 A. No. 9 Q. Do you recall how long you were 10 out of work with that particular condition? 11 A. I don't recall exactly. 12 Q. Did you have a surgery for that 13 condition? 14 A. Yes. 15 Q. Was it one surgery or multiple? 16 A. Multiple. 17 Q. Do you remember how many? 18 A. Two. 19 Q. Do you know how far apart they 20 were in time? 21 A. I cannot -- I don't recall 22 exactly. It was roughly a year. 23 Q. And were you out of work on 24 both of those occasions, following both of 25 those surgeries? DIAMOND REPORTING (877) 624-3287 info@diamondreporting.com 252 FILED: NEW YORK COUNTY CLERK 01/23/2019 10:28 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 228