Preview
FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019
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Exhib 1 t 1,
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FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 398 RECEIVED
INDEXNYSCEF: 09/16/2019
NO. L5832'I/2073
NYSCEF DOC. NO. 1 RECEIVED NYSCEF | 09/L2/20L3
SUPREME COURT OF THE STATE OF NEW YQRK
COUNTY OF NEW YORK suMMolvs
Index No.:
KEVIN McGONIGAL, Date Purchased:
Plaintiff(s), Plaintiff designafes NEW YORK
County as the place of trial
-against-
Basr's af Venue: Defendant's
NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51ST principal place of business
STREET LLC and PLAZA CONSTRUCTION CORP.,
Resrdence of Plaintiff:
Defendant(s), 1 17 Christian Drive
East Stroudsburg, PA 18301
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 Plaintiffs 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
A SACKS, LLP
By: KEN ESQ,
Attorney(s) Plaintiff
Office and Post affice Address
150 Broadway - 4th Floor
New York, New York 10038
(212) 964-s574
Defendant(s) Address(es)
NYY STEAK MANHATTAN, LLC PLAZA CONSTRUCTION CORP.
7-9 West 51't Street 1065 Avenue of the Americas, 7th Floor
New York, New York 10019 New York, New York 10018
PREF 7 WEST 5{ST STREET LLC
c/o Lachman & Lachman LLP
444 Madison Avenue, Suite 2800
New York, New York 10022
FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
KEVIN McGoNIGAL'
vERtFtED coMpLAtNT
Plaintiff(s),
-against-
lndex No.:
NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51ST
STREET LLC and PLAZA CONSTRUCTION CORP.,
Defendant(s).
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.
THIRD: That at all times herein mentioned, defendant, PREF 7 WEST s{sr
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
51't Street in the Borough of Manhattan, City and State of New York.
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NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019
SIXTH: That at all tirnes herein mentioned, defendant, NYY STEAK
MANHATTAN, LLC is the lessee of the aforesaid premises.
TH: That at all times herein mentioned, defendant, PREF 7 WEST 51sr
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, wae in the bueinees of providing conetruction managem€nt eervioee and wos 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.
FLEVENT,I-I: That at all times herein mentioned, defendant, PREF 7 WEST 51sr
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.
IWELFTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION
CORP. entered into a subcontract with Day & Nite Refrigeration alkla Kimco Refrigeration for
Day & Nite Refrigeration alkla Kimco Refrigeration to perform work, labor and services at the
aforesaid premises.
lHlRTEENLhl.: 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 Refrigeraiion a/k/a Kimco Refrigeration he was caused to sustain serious and severe
injuries.
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NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019
FOULTEENTH: 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 laMully 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
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 wurk area; fudher, violated Sections 2Q0, 24A and 241(6) of the Labor
Law of the State of New York, Rule 23 of the lndustrial 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, 2g-z.z, zg-?.9, 23-2.4,29^
2,5, 1.30, 23-3, 23-4,23-5, 23-6, Article 1926 of O.S.H.A and was othenryise negligent, careless
and reckless causing plaintiff to sustain serious and severe injuries.
,FIFTEHI{III": Claimant was free from comparative fautt.
SIXTEENTIf ; As a result of the aforesaid occurrence plaintiff was rendered sick, sore,
lame and disabled, was confined 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 avocation for a long period of time.
9EVENTEENTHI The monetary damages sustained by plaintiff exceed the
jurisdictional limitations of all lower courts which would othenruise have had jurisdiction,
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NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019
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 Broadway - 4th Floor
New York, New York 10038
(212) 964-5570
FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019
ATTORNEY'S VERIFICATION BY AFFIRMATION
l, 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 sime 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 afiirmation instead of plaintiff is heeause plaintiff(s) residein a
County other than where deponent maintains his office,
Dated: New York, New York
September 12,2013
KENN ESQ.
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NYSCEF DOC. NO. 398 RECEIVED
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NO. L5832'7 /20l.3
NYSCEF DOC. NO. 5 RECEIVED NYSCEF 10/L4/2 13
REME COURT OF T'HE STATE OF NEW YORK
OF NEW YORK
McGONIGAL, Index No. : I5B321 lI3
Plaini-if f , VERIFIED ANSWER
- against -
STEAK MANHATTAN, LLC, PREF 7 WEST
1"t STREET l,LC and PLAZA CONSTRUCTION
P
Defendants
DefendANL, NYY STEAK MANHATTAN, Ll,C, by it,s altorneYs JONES
IRSCH CONNORS MILLER & BUIJL P'C', as and for its Verified
swer to plaint.iff,s verified Complaint alleges as follows
FIRST: Denies, upon information and belief, Lhe
llegations conLained" in paragraphs designaLed "l', "5", "13" '
14" , \\15// and ttl6'.
\\ztt
SECOND: Denies the allegations contained in paragraph
n the form alleged but. admil-s that at. all times herein
tioned., defendant NyY $TEAK MANI{ATTAN, LLC was and still is a
oreign limited liability company duly authorized to conducl
iness in 1,he State of New Yorlc.
' THTRD: Denies having knowledge or information sufficient
o form a belief as t,o the allegations contained in paragraphs
tt9", tt11t" \\7-2tt and "17"
signaLed tt3", "4" , "7t' , ttB",
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FOURTH: Adrnits the allegaLions conLained in paragraph
signal*ed *6'
FIFT'FI: Denies the allegat-ions conLained in paragraph
10" in t.he form alleged.
AS AND FOR A FIRST, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE' THIS
ANSWERING DEFENDANT ALI,EGES AS FO],LOWS I
SIXTH: That t.he d.amages allegedly suffered by the
ured- plaintiff were caused in whol"e or in part by the
ulpable conducL of t.he injured plaint,iff herse]f . The
laint.if f rs claim is Lherefore barred or diminished in t,he
roporLion Lhat such culpable conducL of the injured plaintiff
rs to the total culpable conduct causing Lhe damages.
AS AND FOR A SECOND, SEPARATE AI{D
DISTINCT AFFIRMATIVE DEFENSE' THIS
ANSWERING DEFENDAI{T ALLEGES AS FOI,T,OWS:
SEVENTH: The injured plaintiff, if he may have susi:ained
ny injuries aL the Lime and place, and upon Lhe occasion
tioned in the verj-fied" complaint, assumed t.he risk of
us taining same under Lhe conditions and circumsl-ances then
sting and obvious.
1
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AS AND FOR A THIRD, SEPARATE AND
DIST]NCT AFFIRMATIVE DEFENSE, TH]S
ANSWERING DEFENDANT AI,LEGES AS FO],LOWS:
EIGHTH: That any liability to the plaint.iff is limited by
he provisions of Artj.cle 16 of the CPLR'
AS AND FOR A FOURTH, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, THIS
ANSWER ING DEFENDANT ALLEGES AS FOL],OWS:
NINTH: In Lhe event plainLiff recovers a verdict or
ud.gment against these d"efendants, then said werdict or judgment
sL be reduced pursuanL to CPLR 54545 (c) by those amounts which
ve been or wil1, with reasonable certainty, replace or
ndemnify plaintiff in whole or in part, for any past fuLure
laimed economic loss, from any collaLeral Source such as
nsurance, socia1 securiLy, Workers' Compensation or employee
enefit programs
AS AND FOR A F]FTH, SEPARATE AND
DISTINCT AFFIRMAT]VE DEFENSE, THIS
ANSWE R]NG DEFENDANT ALIJEGES AS FOI,LOWS:
TENTH: The negligent acts seL forth in plainl-iff 's
laint wer.e committed by third part,ies over which t.his
swering defendani- had. no conl-rol- or right, of conLrol
3
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AS AND FOR A SIXTH, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, THIS
ANSWERING D EFENDA}IT ALI,EGES AS FOI,LOWS:
EI,EVENTH: Tl'te iljured plaintif f , if he may have sustained
v injuries at the time and place, and upon Lhe occasion
tioned in t.he Verified complainL, assumed t-he risl{ of
US taining same und.er the condit.ions and circumst.ances then
sting and obvious.
AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANT PI'AZA
CONSTRUCTION CORP. , TII] S ANSWERING DEFENDANT ALIJEGES
AS FOLLOWS:
TWELFTH: That if t.he plaintif f sustained the injuries and
s in the manner and at the time and place alleged, and if
t is found that this answering defendanL, NyY STEAK MANHATTAN'
LC; is liable t.o plainLiff herein, all of which is specifically
enied, then said. answering defendant, on the basis of
rLionmenL of responsibilit.y for t.he alleged occurrence/ are
titled. Lo conLribution from co-defendant PI'AZA CONSTRUCTION
. to pay for al-L or parL of any verdict or judgment 1-hat
l_aintiff may recover against t.his answering defendant
oporti-onaLe to co-defendaut' s actua} negligence
4
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AS AND FOR A CROSS*CLAIM AGAINST DEFENDANT PI,AZA
SECOND
CONSTRUCTION CORP., TI{TS ANSWERTNG DEFENDANT AI,I,EGES
AS FOLT,OWS:
THIRTEENTH: That, if the ptaintiff sustained injulies and
ges in the manner and. aL Lhe i:ime and place alleged, and if
t is found Lhat this answering defendant, NyY STEAK MA\IHATTAN,
, is liable to plaintj.ff herein, all of which is specj-fically
nied, then said answering defendant, on l-he basis of
tracLual and/or common-Iaw ind.emnificaLion, is enl-itled to
ry from co-defendant PLAZA CoNSTRUCTION CORp. for all of
verdicL or judgment t,hat plaintiff may recover against Lhis
swering defendanL
WHEREFORE, defendant NyY STEAK MANHATTAN, LLC demands
udgment dismissing plaint.iff's Verified Complaint against it,
furLher d.emands t,haL in the event said answering defendant'
s found liable to plaintiff herein, then said answering
f end.ant, oil the basis of apportionment of respons
j-bilit'y
or on the basis of indemnity, have judgment ovell and against
CoNSTRUCTION CORP. for all or part of any verdicL or
udgment that ptaintiff recovel against said answering
may
fendant, together with Lhe cosLs and disbursements of this
5
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c.Lion, and for any expenses incurred by it in the defense
hereof, inclucling aLl-orneysr fees acLually expended.
aLed New YorJt, New York
OcLober 11, 201-3
JONES HIRSCH CONNORS MIT,LER & BULIJ P. C.
By
'James P onnors, Esq.
Attorn s for Defendants
NYY IVIANHATTAN, LLC
One Bat.t,erY Parl< Plaza
New York, New York 10004
(2t2) s27-1ooo
o: SACKS AIID SACKS, LLP
Attorneys for Plaintiff
off ice & P.o. Address
150 Broad.way - 4th Floor
New York, New York 1-0038
(2L2) 964-5570
9044+
6
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ATTORNEY' S VERIFTCATION
,JAMES p. CONNoRS, affirms under: Lhe penalties of perjury
t he is a principal of the firm of JoNES HIRSCH CONNORS
T,LER & BUIJL P. C. , attorneys f or def endanL NyY STEAK MANHATTAN,
IJC in the cap.tioned action; t.hat he has read the foregoing
FIED ANSWER TO VERIFIED COMPT,AINT ANd ]--
By: ANDREW R. DIAMOND, ESQ.
'(
At tor n ey ( s ) for PI nint iff
Office and Post Office Address
150 Broadway - 4th Floor
New York, New York 10038
(212) e64-s570
Defendant(s) Address(es):
NYY STEAK MANHATTAN, LLC PLAZA CONSTRUCTION CORP.
7-9 West 5lutStreet 1065 Avenue of the Americas, 7th Floor
New York, New York 10019 New York, New York 10018
BARING INDUSTRIES, INC.
3249 S.W.42nd Street
Ft. Lauderdale, FL 33312
FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019
SUPREME COURT OF THE STATE OF NEWYORK
COUNTY OF NEW YORK
KEVIN McGONIGAL, AMENDED
I/EKIFIED COMPLAINT
Plaintiff(s),
-against-
lndex No,: 158327/13
NYY STEAK MANHATTAN, LLC,PLAZA
CONSTRUCTION CORP., and BARING INDUSTRIES,
INC.,
Defendant(s),
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.
conductbusiness in the State of New York.
THIRD: 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.
FOURTH: That at all fimes herein mentioned, defendant, BARING
INDUSTRIES INC. was and still is a foreign corporation authorized to transact business in the State
of New York.
FIFTH: That at all times herein mentioned, defendant, NYY STEAK
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MANHATTAN, LLC was and still is the owner of premises under construction located at 7 West
51't Street in the Borough of Manhattan, City and State of New York.
SIXTH That at all times herein mentioned, defendant, NYY STEAK MANHATTAN,
LLC is the lessee of the aJoresaid premises'
SFyENTI{.: That at all times herein mentioned, defendant, PLAZA
CONSTRUCTION CORP. was in the business of providing general contracting services and was
the general contractol at the aforesaid premises'
EIGHTH: 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 afore'said premises"
NIISIU: That at all times herein mentioned, defendant, BARING
INDUSTRIES, INC. was in the business of providing general contracting services at the
aforementioned premises.
TENTH: That at all times herein mentioned, defendanf BARING
INDUSTRIES, INC. was in the business of providing construction management services at the
aforementioned premises,
ELEVENTII: That at all times herein mentioned, defendang BARING
INDUSTRIES, INC. was in the business of providing steam fitting services at the aforementioned
premises.
TIYELETH: 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.
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THIRTEENTH: That at all times herein mentioned, defendant, NYY STEAK
MANHATTAN, LLC entered into a contract with BARING INDUSTRIES, INC. for BARING
INDUSTRIES, INC. to act as general contractor and/or construction manager at the aforesaid
premises.
EOUBIEEI{III: That at all times herein mentioned" defendant, NYY STEAK
MANHATTAN, LLC entered. into a subcontract with 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.
FIFTEEIS.Tg: That at alt times herein mentioned, defendant, PTAZA
CONSTRUCTION CORP, enter into a contract with BARING INDUSTRIES, INC. to perform
work, labor and services at the aforesaid premises.
SIXTEENTH: That at all tirnes herein mentioned, defendant, PLAZA CONSTRUCTION
CORP. entered into a subcontract with Refrigeration a&/a Kimco Refrigeration for Day & Nite
Refrigeration ak/a Kimco Refrigeration to perform work, labor and services at the aforesaid
premises.
SEVENIEENTH: That at all times herein mentioned, defendant, BARING
INDUSTRIES, INC. entered into a subcontract with Day & Nite Refrigeration alkla Kimco
Refrigeration for Day & Nite Refrigeration alkla Kimco Refrigeration to perform work, labor and
services at the aforesaid premises'
EIGHT-EFNTH: That on the 6th day of Septembey 2013, while plaintifl 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'
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NINTEA{TH: 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,
barlicade samei further, failed to have warnings therea! 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 29-'1..5, 23-"1..7, 23-1.1,1,, 23-1..'1.5, 23-2.'1., 23-2.?, 23-2.3, 23-2.4, 23-2.5, L.30, 23'?, 23-4' 23-5, 23-
6, Article 1,926 ofO.S.H.A and was otherwise negligenf careless and reckless causing plaintiff to
sustain serious and severe injuries,
TWEI{TIETE: Claimant was free from comparative fault.
TWENT-FIRST: As a result of the aforesaid occurrence plaintiff was rendered
sick, sore, lame and disabled, was confined 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
l'ris usual occupation and/or avocation for a long period of time'
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TWENTY-SECOIdQ: The monetary damages sustained by plaintiff' exceed the
jurisdictional limitations of all lower courts which would otherwise have had jurisdiction.
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 Broadway - 4th Floor
New York, New York 10038
(272) e64-5570
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ATTORNEY'S VERIFICATION BY AFFIRMATION
I, ANDREW R. DIAMOND, ESQ., arn 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 SUPPLEMENTAL SUMMONS AND
AMENDED 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 beliel
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
February 3,201.5
rr f)
ANDREW R. DIAMOND, ESQ.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
KEVIN McGONTGAL,
Plaintiff(s),
Index No.: 1"583272013
-agninst-
NYY STEAK MANHATTAN, LLC, PLAZA
CONSTRUCTION CORP., and BARING INDUSTRIES,
INC.,
Defendant(s).
SIJPP LEMENTAL SUMMONS AND AMENDED
COMPLAINT
'
Sacke and Sacks, LLP
150 Broadway,4ft Floor
New York, New York 10038
Tz (2r2)964-5570
' F: (2121349-2147
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NYSCEF DOC. NO. 398
CLE
RECEIVED NO. 158321/201.3
INDtrXNYSCEF: 09/16/2019
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/21 /2015
SI]['REI\4E, CO[JI{.T'OF TIIE STATE OF'NEW YOR.K
COUNTY OF'NEW YORK
X
KEVTN McGONIGAL,
Flaintiff,
'against-
Index No.: L58327/13
NYY STEAK MANHATTAN, LI,C, PLAZA CONSTRIJCTION
CORP. and tsARING INDUSTRIES' INC.,
Defendants.
X
PL AZ A CONS TRUCTION CORP., AMENDED VERIFIED
ANSWER. TO AMEF{DED
Defendantff hi rd-Party Plaintiff VERIFIEP COMPLAINT
-against-
E.A.R ING TNDUSTRtrES, rNC,,
Third-Party trndex No,
Thircl-FartY D ef'endant. 595L461t4
BAR.II,{G INDUSTRIES, nN C.,
Second Third-Party Flaintiff'
Second Thirr} Farty
-against' trndex No.
DAY & NITE R,EFRIGER.ATION COR'P. and KIMCO
TTEFR.IGERATXON CORP.,
Second"Third'PartY Defendants.
X
Defeldant, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff,
PLAZA CONSTRUCTION, LLC flt
Preview
FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 ll Exhib 1 t 1, o FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED INDEXNYSCEF: 09/16/2019 NO. L5832'I/2073 NYSCEF DOC. NO. 1 RECEIVED NYSCEF | 09/L2/20L3 SUPREME COURT OF THE STATE OF NEW YQRK COUNTY OF NEW YORK suMMolvs Index No.: KEVIN McGONIGAL, Date Purchased: Plaintiff(s), Plaintiff designafes NEW YORK County as the place of trial -against- Basr's af Venue: Defendant's NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51ST principal place of business STREET LLC and PLAZA CONSTRUCTION CORP., Resrdence of Plaintiff: Defendant(s), 1 17 Christian Drive East Stroudsburg, PA 18301 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 Plaintiffs 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 A SACKS, LLP By: KEN ESQ, Attorney(s) Plaintiff Office and Post affice Address 150 Broadway - 4th Floor New York, New York 10038 (212) 964-s574 Defendant(s) Address(es) NYY STEAK MANHATTAN, LLC PLAZA CONSTRUCTION CORP. 7-9 West 51't Street 1065 Avenue of the Americas, 7th Floor New York, New York 10019 New York, New York 10018 PREF 7 WEST 5{ST STREET LLC c/o Lachman & Lachman LLP 444 Madison Avenue, Suite 2800 New York, New York 10022 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KEVIN McGoNIGAL' vERtFtED coMpLAtNT Plaintiff(s), -against- lndex No.: NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51ST STREET LLC and PLAZA CONSTRUCTION CORP., Defendant(s). 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. THIRD: That at all times herein mentioned, defendant, PREF 7 WEST s{sr 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 51't Street in the Borough of Manhattan, City and State of New York. FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 SIXTH: That at all tirnes herein mentioned, defendant, NYY STEAK MANHATTAN, LLC is the lessee of the aforesaid premises. TH: That at all times herein mentioned, defendant, PREF 7 WEST 51sr 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, wae in the bueinees of providing conetruction managem€nt eervioee and wos 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. FLEVENT,I-I: That at all times herein mentioned, defendant, PREF 7 WEST 51sr 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. IWELFTH: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION CORP. entered into a subcontract with Day & Nite Refrigeration alkla Kimco Refrigeration for Day & Nite Refrigeration alkla Kimco Refrigeration to perform work, labor and services at the aforesaid premises. lHlRTEENLhl.: 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 Refrigeraiion a/k/a Kimco Refrigeration he was caused to sustain serious and severe injuries. FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 FOULTEENTH: 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 laMully 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 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 wurk area; fudher, violated Sections 2Q0, 24A and 241(6) of the Labor Law of the State of New York, Rule 23 of the lndustrial 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, 2g-z.z, zg-?.9, 23-2.4,29^ 2,5, 1.30, 23-3, 23-4,23-5, 23-6, Article 1926 of O.S.H.A and was othenryise negligent, careless and reckless causing plaintiff to sustain serious and severe injuries. ,FIFTEHI{III": Claimant was free from comparative fautt. SIXTEENTIf ; As a result of the aforesaid occurrence plaintiff was rendered sick, sore, lame and disabled, was confined 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 avocation for a long period of time. 9EVENTEENTHI The monetary damages sustained by plaintiff exceed the jurisdictional limitations of all lower courts which would othenruise have had jurisdiction, FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 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 Broadway - 4th Floor New York, New York 10038 (212) 964-5570 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 ATTORNEY'S VERIFICATION BY AFFIRMATION l, 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 sime 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 afiirmation instead of plaintiff is heeause plaintiff(s) residein a County other than where deponent maintains his office, Dated: New York, New York September 12,2013 KENN ESQ. FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED INDEXNYSCEF: 09/16/2019 NO. L5832'7 /20l.3 NYSCEF DOC. NO. 5 RECEIVED NYSCEF 10/L4/2 13 REME COURT OF T'HE STATE OF NEW YORK OF NEW YORK McGONIGAL, Index No. : I5B321 lI3 Plaini-if f , VERIFIED ANSWER - against - STEAK MANHATTAN, LLC, PREF 7 WEST 1"t STREET l,LC and PLAZA CONSTRUCTION P Defendants DefendANL, NYY STEAK MANHATTAN, Ll,C, by it,s altorneYs JONES IRSCH CONNORS MILLER & BUIJL P'C', as and for its Verified swer to plaint.iff,s verified Complaint alleges as follows FIRST: Denies, upon information and belief, Lhe llegations conLained" in paragraphs designaLed "l', "5", "13" ' 14" , \\15// and ttl6'. \\ztt SECOND: Denies the allegations contained in paragraph n the form alleged but. admil-s that at. all times herein tioned., defendant NyY $TEAK MANI{ATTAN, LLC was and still is a oreign limited liability company duly authorized to conducl iness in 1,he State of New Yorlc. ' THTRD: Denies having knowledge or information sufficient o form a belief as t,o the allegations contained in paragraphs tt9", tt11t" \\7-2tt and "17" signaLed tt3", "4" , "7t' , ttB", FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 FOURTH: Adrnits the allegaLions conLained in paragraph signal*ed *6' FIFT'FI: Denies the allegat-ions conLained in paragraph 10" in t.he form alleged. AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE' THIS ANSWERING DEFENDANT ALI,EGES AS FO],LOWS I SIXTH: That t.he d.amages allegedly suffered by the ured- plaintiff were caused in whol"e or in part by the ulpable conducL of t.he injured plaint,iff herse]f . The laint.if f rs claim is Lherefore barred or diminished in t,he roporLion Lhat such culpable conducL of the injured plaintiff rs to the total culpable conduct causing Lhe damages. AS AND FOR A SECOND, SEPARATE AI{D DISTINCT AFFIRMATIVE DEFENSE' THIS ANSWERING DEFENDAI{T ALLEGES AS FOI,T,OWS: SEVENTH: The injured plaintiff, if he may have susi:ained ny injuries aL the Lime and place, and upon Lhe occasion tioned in the verj-fied" complaint, assumed t.he risk of us taining same under Lhe conditions and circumsl-ances then sting and obvious. 1 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 AS AND FOR A THIRD, SEPARATE AND DIST]NCT AFFIRMATIVE DEFENSE, TH]S ANSWERING DEFENDANT AI,LEGES AS FO],LOWS: EIGHTH: That any liability to the plaint.iff is limited by he provisions of Artj.cle 16 of the CPLR' AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, THIS ANSWER ING DEFENDANT ALLEGES AS FOL],OWS: NINTH: In Lhe event plainLiff recovers a verdict or ud.gment against these d"efendants, then said werdict or judgment sL be reduced pursuanL to CPLR 54545 (c) by those amounts which ve been or wil1, with reasonable certainty, replace or ndemnify plaintiff in whole or in part, for any past fuLure laimed economic loss, from any collaLeral Source such as nsurance, socia1 securiLy, Workers' Compensation or employee enefit programs AS AND FOR A F]FTH, SEPARATE AND DISTINCT AFFIRMAT]VE DEFENSE, THIS ANSWE R]NG DEFENDANT ALIJEGES AS FOI,LOWS: TENTH: The negligent acts seL forth in plainl-iff 's laint wer.e committed by third part,ies over which t.his swering defendani- had. no conl-rol- or right, of conLrol 3 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 AS AND FOR A SIXTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE, THIS ANSWERING D EFENDA}IT ALI,EGES AS FOI,LOWS: EI,EVENTH: Tl'te iljured plaintif f , if he may have sustained v injuries at the time and place, and upon Lhe occasion tioned in t.he Verified complainL, assumed t-he risl{ of US taining same und.er the condit.ions and circumst.ances then sting and obvious. AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANT PI'AZA CONSTRUCTION CORP. , TII] S ANSWERING DEFENDANT ALIJEGES AS FOLLOWS: TWELFTH: That if t.he plaintif f sustained the injuries and s in the manner and at the time and place alleged, and if t is found that this answering defendanL, NyY STEAK MANHATTAN' LC; is liable t.o plainLiff herein, all of which is specifically enied, then said. answering defendant, on the basis of rLionmenL of responsibilit.y for t.he alleged occurrence/ are titled. Lo conLribution from co-defendant PI'AZA CONSTRUCTION . to pay for al-L or parL of any verdict or judgment 1-hat l_aintiff may recover against t.his answering defendant oporti-onaLe to co-defendaut' s actua} negligence 4 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 AS AND FOR A CROSS*CLAIM AGAINST DEFENDANT PI,AZA SECOND CONSTRUCTION CORP., TI{TS ANSWERTNG DEFENDANT AI,I,EGES AS FOLT,OWS: THIRTEENTH: That, if the ptaintiff sustained injulies and ges in the manner and. aL Lhe i:ime and place alleged, and if t is found Lhat this answering defendant, NyY STEAK MA\IHATTAN, , is liable to plaintj.ff herein, all of which is specj-fically nied, then said answering defendant, on l-he basis of tracLual and/or common-Iaw ind.emnificaLion, is enl-itled to ry from co-defendant PLAZA CoNSTRUCTION CORp. for all of verdicL or judgment t,hat plaintiff may recover against Lhis swering defendanL WHEREFORE, defendant NyY STEAK MANHATTAN, LLC demands udgment dismissing plaint.iff's Verified Complaint against it, furLher d.emands t,haL in the event said answering defendant' s found liable to plaintiff herein, then said answering f end.ant, oil the basis of apportionment of respons j-bilit'y or on the basis of indemnity, have judgment ovell and against CoNSTRUCTION CORP. for all or part of any verdicL or udgment that ptaintiff recovel against said answering may fendant, together with Lhe cosLs and disbursements of this 5 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 c.Lion, and for any expenses incurred by it in the defense hereof, inclucling aLl-orneysr fees acLually expended. aLed New YorJt, New York OcLober 11, 201-3 JONES HIRSCH CONNORS MIT,LER & BULIJ P. C. By 'James P onnors, Esq. Attorn s for Defendants NYY IVIANHATTAN, LLC One Bat.t,erY Parl< Plaza New York, New York 10004 (2t2) s27-1ooo o: SACKS AIID SACKS, LLP Attorneys for Plaintiff off ice & P.o. Address 150 Broad.way - 4th Floor New York, New York 1-0038 (2L2) 964-5570 9044+ 6 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 ATTORNEY' S VERIFTCATION ,JAMES p. CONNoRS, affirms under: Lhe penalties of perjury t he is a principal of the firm of JoNES HIRSCH CONNORS T,LER & BUIJL P. C. , attorneys f or def endanL NyY STEAK MANHATTAN, IJC in the cap.tioned action; t.hat he has read the foregoing FIED ANSWER TO VERIFIED COMPT,AINT ANd ]-- By: ANDREW R. DIAMOND, ESQ. '( At tor n ey ( s ) for PI nint iff Office and Post Office Address 150 Broadway - 4th Floor New York, New York 10038 (212) e64-s570 Defendant(s) Address(es): NYY STEAK MANHATTAN, LLC PLAZA CONSTRUCTION CORP. 7-9 West 5lutStreet 1065 Avenue of the Americas, 7th Floor New York, New York 10019 New York, New York 10018 BARING INDUSTRIES, INC. 3249 S.W.42nd Street Ft. Lauderdale, FL 33312 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 SUPREME COURT OF THE STATE OF NEWYORK COUNTY OF NEW YORK KEVIN McGONIGAL, AMENDED I/EKIFIED COMPLAINT Plaintiff(s), -against- lndex No,: 158327/13 NYY STEAK MANHATTAN, LLC,PLAZA CONSTRUCTION CORP., and BARING INDUSTRIES, INC., Defendant(s), 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. conductbusiness in the State of New York. THIRD: 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. FOURTH: That at all fimes herein mentioned, defendant, BARING INDUSTRIES INC. was and still is a foreign corporation authorized to transact business in the State of New York. FIFTH: That at all times herein mentioned, defendant, NYY STEAK FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 MANHATTAN, LLC was and still is the owner of premises under construction located at 7 West 51't Street in the Borough of Manhattan, City and State of New York. SIXTH That at all times herein mentioned, defendant, NYY STEAK MANHATTAN, LLC is the lessee of the aJoresaid premises' SFyENTI{.: That at all times herein mentioned, defendant, PLAZA CONSTRUCTION CORP. was in the business of providing general contracting services and was the general contractol at the aforesaid premises' EIGHTH: 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 afore'said premises" NIISIU: That at all times herein mentioned, defendant, BARING INDUSTRIES, INC. was in the business of providing general contracting services at the aforementioned premises. TENTH: That at all times herein mentioned, defendanf BARING INDUSTRIES, INC. was in the business of providing construction management services at the aforementioned premises, ELEVENTII: That at all times herein mentioned, defendang BARING INDUSTRIES, INC. was in the business of providing steam fitting services at the aforementioned premises. TIYELETH: 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. FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 THIRTEENTH: That at all times herein mentioned, defendant, NYY STEAK MANHATTAN, LLC entered into a contract with BARING INDUSTRIES, INC. for BARING INDUSTRIES, INC. to act as general contractor and/or construction manager at the aforesaid premises. EOUBIEEI{III: That at all times herein mentioned" defendant, NYY STEAK MANHATTAN, LLC entered. into a subcontract with 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. FIFTEEIS.Tg: That at alt times herein mentioned, defendant, PTAZA CONSTRUCTION CORP, enter into a contract with BARING INDUSTRIES, INC. to perform work, labor and services at the aforesaid premises. SIXTEENTH: That at all tirnes herein mentioned, defendant, PLAZA CONSTRUCTION CORP. entered into a subcontract with Refrigeration a&/a Kimco Refrigeration for Day & Nite Refrigeration ak/a Kimco Refrigeration to perform work, labor and services at the aforesaid premises. SEVENIEENTH: That at all times herein mentioned, defendant, BARING INDUSTRIES, INC. entered into a subcontract with Day & Nite Refrigeration alkla Kimco Refrigeration for Day & Nite Refrigeration alkla Kimco Refrigeration to perform work, labor and services at the aforesaid premises' EIGHT-EFNTH: That on the 6th day of Septembey 2013, while plaintifl 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 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 NINTEA{TH: 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, barlicade samei further, failed to have warnings therea! 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 29-'1..5, 23-"1..7, 23-1.1,1,, 23-1..'1.5, 23-2.'1., 23-2.?, 23-2.3, 23-2.4, 23-2.5, L.30, 23'?, 23-4' 23-5, 23- 6, Article 1,926 ofO.S.H.A and was otherwise negligenf careless and reckless causing plaintiff to sustain serious and severe injuries, TWEI{TIETE: Claimant was free from comparative fault. TWENT-FIRST: As a result of the aforesaid occurrence plaintiff was rendered sick, sore, lame and disabled, was confined 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 l'ris usual occupation and/or avocation for a long period of time' FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 TWENTY-SECOIdQ: The monetary damages sustained by plaintiff' exceed the jurisdictional limitations of all lower courts which would otherwise have had jurisdiction. 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 Broadway - 4th Floor New York, New York 10038 (272) e64-5570 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 ATTORNEY'S VERIFICATION BY AFFIRMATION I, ANDREW R. DIAMOND, ESQ., arn 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 SUPPLEMENTAL SUMMONS AND AMENDED 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 beliel 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 February 3,201.5 rr f) ANDREW R. DIAMOND, ESQ. FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 RECEIVED NYSCEF: 09/16/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KEVIN McGONTGAL, Plaintiff(s), Index No.: 1"583272013 -agninst- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP., and BARING INDUSTRIES, INC., Defendant(s). SIJPP LEMENTAL SUMMONS AND AMENDED COMPLAINT ' Sacke and Sacks, LLP 150 Broadway,4ft Floor New York, New York 10038 Tz (2r2)964-5570 ' F: (2121349-2147 FILED: NEW YORK COUNTY CLERK 09/16/2019 02:15 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 398 CLE RECEIVED NO. 158321/201.3 INDtrXNYSCEF: 09/16/2019 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 04/21 /2015 SI]['REI\4E, CO[JI{.T'OF TIIE STATE OF'NEW YOR.K COUNTY OF'NEW YORK X KEVTN McGONIGAL, Flaintiff, 'against- Index No.: L58327/13 NYY STEAK MANHATTAN, LI,C, PLAZA CONSTRIJCTION CORP. and tsARING INDUSTRIES' INC., Defendants. X PL AZ A CONS TRUCTION CORP., AMENDED VERIFIED ANSWER. TO AMEF{DED Defendantff hi rd-Party Plaintiff VERIFIEP COMPLAINT -against- E.A.R ING TNDUSTRtrES, rNC,, Third-Party trndex No, Thircl-FartY D ef'endant. 595L461t4 BAR.II,{G INDUSTRIES, nN C., Second Third-Party Flaintiff' Second Thirr} Farty -against' trndex No. DAY & NITE R,EFRIGER.ATION COR'P. and KIMCO TTEFR.IGERATXON CORP., Second"Third'PartY Defendants. X Defeldant, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff, PLAZA CONSTRUCTION, LLC flt