Preview
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
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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
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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
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FILED: NEW YORK COUNTY CLERK 04/16/2019 03:55 PM INDEX NO. 158327/2013
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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.
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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
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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
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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
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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
MINIMUMTHADECATEGORIES
1.Superimendesit :arrinheourpMelatniw
lugs emiofcoch
work f·· the'ti'.Nmmir;erh. h>
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PLAZ A soPERrNTeNoeNTs oAns R£PoRT
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rlumeripthut berunche ycille.dunmgelemdier.
and
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DAYS: Log(fooks
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CONTR
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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
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tohethw<1
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-. ..-------- DAILY REPORT
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----- -'