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  • Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc. Tort document preview
  • Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc. Tort document preview
  • Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc. Tort document preview
  • Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc. Tort document preview
  • Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc. Tort document preview
  • Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc. Tort document preview
  • Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc. Tort document preview
  • Kevin Mcgonigal v. Nyy Steak Manhattan, Llc, Plaza Construction Corp., Baring Industries, Inc. Tort document preview
						
                                

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FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 Exhibit A FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -- -------------- ------------------------X KEVIN McGONIGAL, Index No. 158327/13 Plaintiff, AFFIDAVIT -against- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION Hon. Margaret A. Chan, J.S.C. CORP. and BARING INDUSTRIES, INC., Defendants. ________ --___________________-------------------X PLAZA CONSTRUCTION CORP., Third-Party Index No. 595146/14 Third-Party Plaintiff, -against- BARING INDUSTRIES, INC., Third-Party Defendant. ---------_________------------------------------X BARING INDUSTRIES, INC., Second Third-Party Index No. 595130/15 Second Third-Party Plaintiff, -against- DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. ___ --------- ------X NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION Third Third-Party LLC f/k/a PLAZA CONSTRUCTION CORP., Index No. 595638/15 Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BAR1NG INDUSTRIES, INC., Third Third-Party Defendants. ______________________________________ -------X 1 [1656493/1] FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 STATE OF NEW YORK ) : ss: COUNTY OF NEW YORK ) George E. Usher, Jr., having been duly sworn, deposes and says: 1. I am currently employed by Plaza Construction as a Superintendent. This affidavit is based on my personal knowledge 2. On September 6, 2013, I was employed as a Superintendent for Plaza Construction in connection with a construction project at New York Yankee Steakhouse, located 51" at 7 West Street, New York, New York. 3. This affidavit supplements my examination before trial testimony in this action on March 10, 2017. 4. I have reviewed Plaza's daily logs dated August 27, 2013 through September 6, 2013, for the New York Yankee Steakhouse project, which are attached to my affidavit. It was part of my duties to write the daily logs and it was in the course of my duties as the Superintendent that I wrote the daily logs. In the daily logs, I identified which trade contractors were on the job, their trade, the number of workers present and a brief description of the work the contractor performed. 5. I have been informed by counsel that the Mr. Kevin McGonigal claims that on September 6, 2013, he tripped on a piece of wood and fell into an elevator pit at the 2LL level. 6. The daily log for August 27, 2013 states that Ess & Vee, the carpentry subcontractor, had 6 carpenters on site. The daily log indicates that on August 27. 2013. Ess & Vee workers were work on the 2LL level. As indicated on the daily log which I performing prepared on August Ess and Vee was butcher walls on the 2LL corridor. The 27, 2013, framing 2 [1656493/1] FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 butcher walls were part of the kitchen which is on the 2LL level. The kitchen is approximately 20 feet away from the elevator pit. 7. The daily log for August 28, 2013 states that Ess & Vee had 6 carpenters on site. The daily log indicates that on August 28, 2013, Ess & Vee workers were performing work on the 2LL level. As indicated on the daily log which I prepared on August 28, 2013, Ess and Vee did sheetrocking at the 2LL butcher shop and outside perimeter walls, taper. Tapering means that Ess & Vee was getting the sheetrock ready to be painted. As stated in the log, this work was performed at the 2LL level. 8. The daily log for August 29, 2013 states that Ess & Vee had 5 carpenters on site. The daily log indicates that on August 29, 2013, Ess & Vee workers were performing work on the 2LL level. As indicated on the daily log which I prepared on August 29, 2013, Ess and Vee 2nd did blocking for handrails, blocking for kitchen equipment, sheetrocking at floor. The blocking for handrails and for kitchen equipment was performed at the 2LL level. In my experience, blocking is work that uses 2 x 4's and plywood. The daily log also indicates that on August 29, 2013, B&G workers were performing work on the 2LL level. As indicated on the daily log, B&G workers pulled wire to the 2LL panel. 9. The daily log for August 30, 2013 states that Ess & Vee had 6 carpenters on site. The daily log indicates that on August 30, 2013, Ess & Vee workers were performing work on the 2LL level. As indicated on the daily log which I prepared on August 27, 2013, Ess and Vee did in the corridor and 2LL bathrooms. This work includes the corridor where the sheetrocking elevator pit was located. The 2LL bathrooms were approximately 30 feet to 40 feet away from the elevator pit. The daily log also indicates that on August 30, 2013, B&G workers were [1656493/1] 3 FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 performing work on the 2LL level. The log indicates that B&G workers were pulling wire to panels on 2LL. This work was performed relatively close to the elevator pit. 10. The daily log for September 3, 2013 state that Ess & Vee had 5 carpenters and 1 taper on site. The daily log indicates that on September 3, 2013, Ess & Vee workers were performing work on the 2LL level. As indicated on the daily log which I prepared on September 3, 2013, Ess and Vee was framing at the stair at the 2LL gas booster room. The gas booster room was directly across from the elevator pit. The log also indicates that the taper was putting a second coat on at 2LL. The taper's work would have been performed on the entire 2LL level. 11. The daily log for September 4, 2013 states that Ess & Vee had 5 carpenters and 1 taper on site. The daily log indicates that on September 4, 2013, Ess & Vee workers were performing work on the 2LL level. As indicated on the daily log which I prepared on September 4, 2013, Ess and Vee's taper was putting a second coat on and polishing the 2LL outside walls. VFD" The log also indicates that on September 4, 2013, B&G electricians were doing "MER piping from the second floor, Con Edison conduit racks up to switch gear room. Fire alarm. MER stands for mechanical equipment room and VFD stands for variable frequency drives. The switch gear room is on the 2LL level and approximately 15 feet away from the elevator pit. 12. The daily log for September 5, 2013 states that Ess & Vee had 5 carpenters on site. The daily log indicates that on September 5, 2013, Ess & Vee workers were performing work on the 2LL level. As indicated on the which I prepared on September 5 2013, Ess daily log and Vee set the door buck at the 2LL level. The also indicates that on (frame) daily log B&G electricians were work on the 2LL level. As indieted on September 5, 2013, performing conduit from the Con Ed room on the third floor to the switch gear room the daily log, they ran on the 2LL level. 4 [1656493/1] FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 13. The daily log for September 6, 2013 states that Ess & Vee had 8 carpenters on site. The daily log irdc=†ês that on Scptember 6, 2013, Ess & Vee workers were performing work on the 2LL level. As indicated on the daily log which I prepared on Scptcmbct 6, 2013, "FRP" Ess and Vee did at the 2LL level. FRP stands for fiberglass reinforced panels. This work would have been performed along all corridor walls throughout the 2LL level. The daily log also indicates that on September 6, 2013, B&G workers were performing work on the 2LL level. As indicated on the daily log, B&G had 10 electricians on site and that it did fire alarm work on 3LL and 2LL levels, wire starters internally. Sworn to before me this of r day /, , 2019 MATTHEW J PANNO - Stateof NewYork NotaryPublio 01PA6353283 NO. Oualifiedin SuffolkCounty ExpiresJan17,2021 MyCommission 5 [1656493/1] FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 6 5 E c k FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 b O c t c p o m o c p . .L R W h FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 n F n L -- u . L --1 FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 MINIMUMTHADECATEGORIES 1.Superimendesit :arrinheourpMelatniw lugs emiofcoch work f·· the'ti'.Nmmir;erh. h> t atrzwinheEredarr: PLAZ A soPERrNTeNoeNTs oAns R£PoRT cnug1aucyIrJFr ornolater thestgriofthewrkihrfohowing than unrkidla. gu.rmal iuy v.e h...WL p. [3r hrc M*m-W.r..- Gr- .n-,, mimie Non IbriW N':=Ir f)rs. . b-;,1 hmN .gpm pidl. TF.N!l4-:R ATil& + AN1 2.Thework shutdd rlumeripthut berunche ycille.dunmgelemdier. and -- PROJECT: DATE: .L Thewhile teview copy and htobr.forwierdni intheSenus forwarti loU.ePmjMManager Pruject whowill .tndPmjeci Manager F,wlithe. . Spw S u N l' when applicable anrI me. o . e... PROJECNO.:____2___ DAY: 4.The enthon Es copykfp sttheútewimthesunrintenifMI*.4 rMors h ,n Mn n N usugil thejobcorrepleteout . CUMULATIVE ' ' Manager tothePrviert ' " DAYS: Log(fooks Daily arrIdrirtu furhadup TRADL CONTR CTOR TRADE NUMilEK WORKPERFORMED Ï CONTRACTORS EN} AI FORCE i FIEl.D PF.RSONNEL -^-- -' -~---" Chiel PÔrty AME liOURS GSITumcD120 ----··----- ---- . .-n--4-------- ¬ ----. . .. ......RodMan ' v .... Valol' Oper|ttOrs b 6 UN [ Maimenance Men n P taev6 trL N - dvd MM V T on TOTAL. ---- I TUiAL TEMPORARYSERVICES ----- · ··· - ------- fAJOR DEl.IVERIE ._....................... .... . ...,___ . . ... . ...__ Sliectme1al _____ __ .... ..,,___ Water Tempoprv , lilectrichms iT:moorary VisfTOR TOW. h I . ....... RLHBISH RollOfli c vN S Tb CONTROLLEDINSPECTION mum Concrete .., . ) ,, ,_ . ... ,., Strucl I SICCI | Reinforcement Steel - - - ----- p Cunainwall Firestopping OTER I A1WD LWL CW VVWL hW Gentemsubgrade) omer TOTAL TOTAL St!P'T: FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 266 RECEIVED NYSCEF: 04/16/2019 MINIMIMTIMDECATEGORIES 6.T|wMirdmum TmdeC.utturis--. tohethw<1 PLAZA -. ..-------- DAILY REPORT SUPERINTENDENT'S L superimendem ornolatrrthanUpm ininecompleted theshirlof1he end atugh orechwork workthefoh ingnormw work day d. ""' ar ceNst - ucT on .e . ,·w, .·nr,. . .e.w v. -+ • n o [WPERATUE Aht . Thework dearipSmhuddheronciw amispecific. donotgencnc. emp.mncmwme . . at T C'T T1 .M IPI'Jhe d ·..I Md a aF PROJECT DATE: 3, The h mp.h In.. Girur½oSwWj o Map huwW ry reim reviewrandrarward totheSeniur Presied Man;ç.ram|*rojett cutiw. when applicabk umfGtc. PROJEUNO.: DAY: , . .7 -- - u 4.Therarbans isArps titewithINsuperintendcut'E agutte trct*rds . . .. antilthejobmp rumph-tinn, ( CUMULATIVE 1 Atthecompletion oriteprojecttop Eitr superintangent willrortgard all DAYS- nainLoxth'outonic ProjectManaev roris.ctaparchi,ing. TRADE CONTRACTOtt THADE NUMHER-- WORK PERFORMED GENERALFORCE CONTRACTORS FIELD PKHSONNFl. NAME bOURS 1l 1 IUK IW \ LJUyL )'MO 11nisEnzncers ----- -'