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FILED:: NEW
IFILED NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 07/19/2019 11:32 AM INDEX
INDEX NO.
NO. 158327/2013
158327/2013
09/12/2013|
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 323
1 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 07/19/2019
09/12/2013
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK SUMMONS
X
Index No.:
KEVIN McGONIGAL, Date Purchased:
Plaintiff(s), Plaintiff designates NEW YORK
County as the place of trial
-against-
Basis of Venue: Defendant's
51ST
NYY STEAK MANHATTAN, LLC, PREF 7 WEST principal place of business
STREET LLC and PLAZA CONSTRUCTION CORP.,
Residence of Plaintiff:
Defendant(s). 117 Christian Drive
East Stroudsburg, PA 18301
--------------------------------------x
To the above named Defendant(s):
You are hereby summoned to answer the complaint in this action and to serve a
copy of your answer, or, if the complaint is not served with this summons, to serve a notice of
appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons,
exclusive of the day of service (or within 30 days after the service is complete if this summons is
not personally delivered to you within the State of New York); and in case of your failure to
appear or answer, judgment will be taken against you by default for the relief demanded in the
complaint.
Dated: New York, New York
September 12, 2013
SA S AN SACKS, LLP
By: KEN ACKS, ESQ.
Attorney(s) for Plaintiff
Office and Post Office Address
150 - 4th Floor
Broadway
New York, New York 10038
(212) 964-5570
Defendant(s) Address(es):
NYY STEAK MANHATTAN, LLC PLAZA CONSTRUCTION CORP.
51st 7th
7-9 West Street 1065 Avenue of the Americas,
New York, New York 10019 New York, New York 10018
51ST
PREF 7 WEST STREET LLC
c/o Lachman & Lachman LLP
444 Madison Avenue, Suite 2800
New York, New York 10022
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
KEVIN McGONIGAL,
VERIFIED COMPLAINT
Plaintiff(s),
-against-
Index No.:
51ST
NYY STEAK MANHATTAN, LLC, PREF 7 WEST
STREET LLC and PLAZA CONSTRUCTION CORP.,
Defendant(s).
_____________________------------------------------X
Plaintiff, complaining of the defendants, by his attorneys, SACKS & SACKS, LLP,
respectfully alleges as follows:
FIRST: That at all times herein mentioned, defendant, NYY STEAK
MANHATTAN, LLC was and still is a domestic limited liability company duly organized and
existing under and by virtue of the laws of the State of New York.
SECOND: That at all times herein mentioned, defendant, NYY STEAK
MANHATTAN, LLC was and still is a foreign limited liability company duly authorized to own
property and conduct business in the State of New York.
51ST
THIRD: That at all times herein mentioned, defendant, PREF 7 WEST
STREET LLC was and still is a foreign limited liability company duly authorized to own property
and conduct business in the State of New York.
FOURTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION
CORP. was and still is a domestic corporation duly organized and existing under and by virtue
of the laws of the State of New York.
FIFTH: That at all times herein mentioned, defendant, NYY STEAK
MANHATTAN, LLC was and still is the owner of premises under construction located at 7 West
51st
Street in the Borough of Manhattan, City and State of New York.
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019
SIXTH: That at all times herein mentioned, defendant, NYY STEAK
MANHATTAN, LLC is the lessee of the aforesaid premises.
51ST
SEVENTH: That at all times herein mentioned, defendant, PREF 7 WEST
STREET LLC was and still is the owner of the aforesaid premises.
EIGHTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION
CORP. was in the business of providing general contracting services and was the general
contractor at the aforesaid premises.
NINTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION
CORP. was in the business of providing construction management services and was the
construction manager at the aforesaid premises.
TENTH: That at all times herein mentioned, defendant, NYY STEAK
MANHATTAN, LLC entered into a contract with PLAZA CONSTRUCTION CORP. for PLAZA
CONSTRUCTION CORP. to act as general contractor and/or construction manager at the
aforesaid premises.
51ST
ELEVENTH: That at all times herein mentioned, defendant, PREF 7 WEST
STREET LLC entered into a contract with PLAZA CONSTRUCTION CORP. for PLAZA
CONSTRUCTION CORP. to act as general contractor and/or construction manager at the
aforesaid premises.
TWELFTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION
CORP. entered into a subcontract with Day & Nite Refrigeration a/k/a Kimco Refrigeration for
Day & Nite Refrigeration a/k/a Kimco Refrigeration to perform work, labor and services at the
aforesaid premises.
THIRTEENTH: That on the 6th day of September, 2013, while plaintiff, KEVIN
McGONIGAL was lawfully upon the aforesaid premises as an employee of the aforesaid Day &
Nite Refrigeration a/k/a Kimco Refrigeration he was caused to sustain serious and severe
injuries.
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019
FOURTEENTH: The occurrence as aforesaid was caused solely and wholly by
reason of the segligence, carelessness and recklessness of the defendants, their ccñtractors,
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 illuminatedt---
was-properly
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,
but not limited to 23-1.5, 23-
specifically 23-1.7, 23-1.11, 23-1.15, 23-2.1, 23-2.2, 23-2.3, 23-2.4,
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.
FIFTEENTH: Claimant was free from comparative fault.
SIXTEENTH: As a result of the aforesaid occurrence plaintiff was rendered sick, sore,
lame and disabled, was cõñfined to bed and home for a long period of time; was caused to
expend large sums of money for medical aid and attention and has been prevented from
attending his usual occupation and/or avccaticñ for a long period of time.
SEVENTEENTH: The monetary damages sustained by plaintiff exceed the
jurisdictional limitations of all lower courts which would otherwise have had jurisdiction.
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019
WHEREFORE, the plaintiff demands relief against the defendants for conscious pain
and suffering, loss of enjoyment of life, medical expenses, past and future, lost wages and union
benefits, past and future, and all other recoverable items under New York State law.
SACKS AND SACKS, LLP
Attorneys for Plaintiff(s)
Office & P.O. Address:
150 - 4th Floor
Broadway
New York, New York 10038
(212) 964-5570
FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019
ATTORNEY'S VERIFICATION BY AFFIRMATION
I, KENNETH SACKS, am an attorney duly admitted to practice in the courts of New York
State, and say that: I am the attorney of record, or of counsel with the attorney(s) of record, for
the plaintiff(s), I have read the annexed SUMMONS AND VERIFIED COMPLAINT know the
contents thereof and the same are true to my knowledge, except those matters therein which
are stated to be alleged on information and belief, and as to those matters I believe them to be
true. My belief, as to those matters therein not stated upon knowledge, is based upon the
following: facts, investigations and pertinent data contained in deponent's file.
The reason I make this affirmation instead of plaintiff is because plaintiff(s) reside in a
County other than where deponent maintains his office.
Dated: New York, New York
September 12, 2013
KENNETlhrACKS SQ.
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FILED:: NEW IFILED NEW YORK YORK COUNTY COUNTY CLERK CLERK 07/19/2019 11:32 AM INDEX INDEX NO. NO. 158327/2013 158327/2013 09/12/2013| NYSCEF NYSCEF DOC. DOC. NO. NO. 323 1 RECEIVED RECEIVED NYSCEF: NYSCEF: 07/19/2019 09/12/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SUMMONS X Index No.: KEVIN McGONIGAL, Date Purchased: Plaintiff(s), Plaintiff designates NEW YORK County as the place of trial -against- Basis of Venue: Defendant's 51ST NYY STEAK MANHATTAN, LLC, PREF 7 WEST principal place of business STREET LLC and PLAZA CONSTRUCTION CORP., Residence of Plaintiff: Defendant(s). 117 Christian Drive East Stroudsburg, PA 18301 --------------------------------------x To the above named Defendant(s): You are hereby summoned to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: New York, New York September 12, 2013 SA S AN SACKS, LLP By: KEN ACKS, ESQ. Attorney(s) for Plaintiff Office and Post Office Address 150 - 4th Floor Broadway New York, New York 10038 (212) 964-5570 Defendant(s) Address(es): NYY STEAK MANHATTAN, LLC PLAZA CONSTRUCTION CORP. 51st 7th 7-9 West Street 1065 Avenue of the Americas, New York, New York 10019 New York, New York 10018 51ST PREF 7 WEST STREET LLC c/o Lachman & Lachman LLP 444 Madison Avenue, Suite 2800 New York, New York 10022 FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KEVIN McGONIGAL, VERIFIED COMPLAINT Plaintiff(s), -against- Index No.: 51ST NYY STEAK MANHATTAN, LLC, PREF 7 WEST STREET LLC and PLAZA CONSTRUCTION CORP., Defendant(s). _____________________------------------------------X Plaintiff, complaining of the defendants, by his attorneys, SACKS & SACKS, LLP, respectfully alleges as follows: FIRST: That at all times herein mentioned, defendant, NYY STEAK MANHATTAN, LLC was and still is a domestic limited liability company duly organized and existing under and by virtue of the laws of the State of New York. SECOND: That at all times herein mentioned, defendant, NYY STEAK MANHATTAN, LLC was and still is a foreign limited liability company duly authorized to own property and conduct business in the State of New York. 51ST THIRD: That at all times herein mentioned, defendant, PREF 7 WEST STREET LLC was and still is a foreign limited liability company duly authorized to own property and conduct business in the State of New York. FOURTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION CORP. was and still is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York. FIFTH: That at all times herein mentioned, defendant, NYY STEAK MANHATTAN, LLC was and still is the owner of premises under construction located at 7 West 51st Street in the Borough of Manhattan, City and State of New York. FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019 SIXTH: That at all times herein mentioned, defendant, NYY STEAK MANHATTAN, LLC is the lessee of the aforesaid premises. 51ST SEVENTH: That at all times herein mentioned, defendant, PREF 7 WEST STREET LLC was and still is the owner of the aforesaid premises. EIGHTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION CORP. was in the business of providing general contracting services and was the general contractor at the aforesaid premises. NINTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION CORP. was in the business of providing construction management services and was the construction manager at the aforesaid premises. TENTH: That at all times herein mentioned, defendant, NYY STEAK MANHATTAN, LLC entered into a contract with PLAZA CONSTRUCTION CORP. for PLAZA CONSTRUCTION CORP. to act as general contractor and/or construction manager at the aforesaid premises. 51ST ELEVENTH: That at all times herein mentioned, defendant, PREF 7 WEST STREET LLC entered into a contract with PLAZA CONSTRUCTION CORP. for PLAZA CONSTRUCTION CORP. to act as general contractor and/or construction manager at the aforesaid premises. TWELFTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION CORP. entered into a subcontract with Day & Nite Refrigeration a/k/a Kimco Refrigeration for Day & Nite Refrigeration a/k/a Kimco Refrigeration to perform work, labor and services at the aforesaid premises. THIRTEENTH: That on the 6th day of September, 2013, while plaintiff, KEVIN McGONIGAL was lawfully upon the aforesaid premises as an employee of the aforesaid Day & Nite Refrigeration a/k/a Kimco Refrigeration he was caused to sustain serious and severe injuries. FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019 FOURTEENTH: The occurrence as aforesaid was caused solely and wholly by reason of the segligence, carelessness and recklessness of the defendants, their ccñtractors, 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 illuminatedt--- was-properly 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, but not limited to 23-1.5, 23- specifically 23-1.7, 23-1.11, 23-1.15, 23-2.1, 23-2.2, 23-2.3, 23-2.4, 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. FIFTEENTH: Claimant was free from comparative fault. SIXTEENTH: As a result of the aforesaid occurrence plaintiff was rendered sick, sore, lame and disabled, was cõñfined to bed and home for a long period of time; was caused to expend large sums of money for medical aid and attention and has been prevented from attending his usual occupation and/or avccaticñ for a long period of time. SEVENTEENTH: The monetary damages sustained by plaintiff exceed the jurisdictional limitations of all lower courts which would otherwise have had jurisdiction. FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019 WHEREFORE, the plaintiff demands relief against the defendants for conscious pain and suffering, loss of enjoyment of life, medical expenses, past and future, lost wages and union benefits, past and future, and all other recoverable items under New York State law. SACKS AND SACKS, LLP Attorneys for Plaintiff(s) Office & P.O. Address: 150 - 4th Floor Broadway New York, New York 10038 (212) 964-5570 FILED: NEW YORK COUNTY CLERK 07/19/2019 11:32 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 323 RECEIVED NYSCEF: 07/19/2019 ATTORNEY'S VERIFICATION BY AFFIRMATION I, KENNETH SACKS, am an attorney duly admitted to practice in the courts of New York State, and say that: I am the attorney of record, or of counsel with the attorney(s) of record, for the plaintiff(s), I have read the annexed SUMMONS AND VERIFIED COMPLAINT know the contents thereof and the same are true to my knowledge, except those matters therein which are stated to be alleged on information and belief, and as to those matters I believe them to be true. My belief, as to those matters therein not stated upon knowledge, is based upon the following: facts, investigations and pertinent data contained in deponent's file. The reason I make this affirmation instead of plaintiff is because plaintiff(s) reside in a County other than where deponent maintains his office. Dated: New York, New York September 12, 2013 KENNETlhrACKS SQ.