Preview
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
EXHIBIT “Q”
EXHIBIT “Q”
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF:
1
04/17/2023
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 INDUSTRIES,
8 INC.,
9 DEFENDANTS.
10 PLAZA CONSTRUCTION CORP.,
11 THIRD-PARTY PLAINTIFF,
12 -against-
13 BARING INDUSTRIES, INC.,
14 THIRD-PARTY DEFENDANT.
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
(Captions continues)
21
22 DATE: November 9, 2016
23 TIME: 10:30 A.M.
24
25 (DEPOSITION OF KEVIN McGONIGAL.)
DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com
1
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
2
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
-against-
7
B&G ELECTRICAL CONTRACTORS, ESS & VEE
8 ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.,
9
THIRD THIRD-PARTY DEFENDANTS.
10 ------------------------------------------X
11
12 DATE: November 9, 2016
13 TIME: 10:30 A.M.
14
15 EXAMINATION BEFORE TRIAL of the
16 Plaintiff, KEVIN McGONIGAL, taken by the
17 Respective Parties, pursuant to an Order,
18 held at the offices of Sacks & Sacks, LLP,
19 150 Broadway, New York, New York 10038,
20 before May Jean Wu, a Court Reporter and
21 Notary Public of the State of New York.
22
23
24
25
DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
3
1
2 A P P E A R A N C E S:
3
SACKS & SACKS, LLP
4 Attorneys for the Plaintiff
150 Broadway
5 New York, New York 10038
BY: ANDREW R. DIAMOND, ESQ.
6
7
FABIANI COHEN & HALL, LLP
8 Attorneys for the Defendants/
Third-Party Plaintiff/
9 Second Third-Party Plaintiff and
Third Third-Party Plaintiffs
10 NYY STEAK MANHATTAN, LLC and
PLAZA CONSTRUCTION CORP.
11 570 Lexington Avenue
New York, New York 10022
12 BY: PATRICK AURILIA, ESQ.
File Number: 731.37312
13
14
LAW OFFICES OF CHARLES J. SIEGEL
15 Attorneys for the Defendant/
Third-Party Defendant/
16 Second Third-Party Plaintiff and
Third Third-Party Defendant
17 BARING INDUSTRIES, INC.
125 Broad Street 7th Floor
18 New York, New York 10004
BY: NIKOLAOS E. DIAMANTIS, ESQ.
19 File Number: 1141413662
20
21 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
Attorneys for the
22 Second Third-Party Defendants
DAY & NITE REFRIGERATION CORP. and
23 KIMCO REFRIGERATION CORP.
1000 Woodbury Road Suite 402
24 Woodbury, New York 11797
BY: DAVID A. LORE, ESQ.
25 File Number: 532-1347
DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
4
1
2 A P P E A R A N C E S: (Continued)
3
VIGORITO, BARKER, PORTER & PATTERSON, LLP
4 Attorneys for the
Third Third-Party Defendant
5 B&G ELECTRICAL CONTRACTORS
115 Stevens Avenue
6 Valhalla, New York 10595
BY: EILEEN R. FULLERTON, ESQ.
7
8
SMITH MAZURE DIRECTOR
9 WILKINS YOUNG & YAGERMAN, P.C.
Attorneys for the
10 Third Third-Party Defendant
ESS & VEE ACOUSTICAL CONTRACTORS,
11 INC.
111 John Street
12 New York, New York 10038
BY: ROBERT PALISENO, ESQ.
13 File Number: AWA112
14
* * *
15
16
17
18
19
20
21
22
23
24
25
DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
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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
subdivision (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 answer 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, (iii)or 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 (718) 624-7200 info@diamondreporting.com
5
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
6
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 (718) 624-7200 info@diamondreporting.com
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
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1 McGONIGAL
2 K E V I N M c G O N I G A L, called as
3 a witness, having been first duly sworn by
4 a Notary Public of the State of New York,
5 was 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. Where do you live?
12 A. 117 Chrisjan Drive, East
13 Stroudsburg, Pennsylvania 18301.
14 Q. Good morning, sir.
15 A. Good morning.
16 Q. My name is Patrick Aurilia and
17 my office represents NYY Steak Manhattan as
18 well as Plaza Construction in this lawsuit.
19 I'm going to ask you some
20 questions relative to the action you're
21 bringing and the accident you had on
22 September 6, 2013. I ask that all your
23 responses to my questions be verbal so that
24 the court reporter can take them down
25 instead of shaking your head or using your
DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com
7
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
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1 McGONIGAL
2 hands.
3 A. Yes.
4 Q. Like your attorney just
5 instructed you, please let me finish the
6 question before you respond to me so that
7 we don't talk over one another so that it's
8 easier for the court reporter. If at any
9 time you don't understand the question that
10 I ask, let me know and I'll rephrase it so
11 that you do understand what I'm saying,
12 okay?
13 A. Yep.
14 Q. If at any time you would like
15 to take a break, stretch your legs or speak
16 to your attorney, you're free to do so as
17 long as there is no question pending, okay?
18 A. Okay.
19 Q. The address you gave, 117
20 Chrisjan Drive in East Stroudsburg, how
21 long have you lived there?
22 A. I have lived there since 2003.
23 Q. Is that a private home?
24 A. Yes.
25 Q. Who owns that home?
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
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1 McGONIGAL
2 A. I do.
3 Q. Solely?
4 A. Yes.
5 Q. What type of home is it? Can
6 you describe it? Is it like a colonial
7 style, a ranch style or something else?
8 A. It's a single story ranch.
9 Q. Who lives there currently?
10 A. Just myself.
11 Q. Who lived there in September of
12 2013?
13 A. Just myself and I had my
14 ex-girlfriend, but, no, she wasn't there at
15 that time.
16 Q. Are you married, sir?
17 A. No.
18 Q. Have you ever been married?
19 A. What?
20 Q. Have you ever been married?
21 A. No.
22 Q. Any children?
23 A. No.
24 Q. Can I have your date of birth?
25 A. 1977.
DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
10
1 McGONIGAL
2 Q. Your Social?
3 A.
4 Q. Have you ever used any
5 different Social Security number?
6 A. No.
7 Q. What's your current height?
8 A. Six foot.
9 Q. Even?
10 A. I believe so, yeah.
11 Q. Your current weight?
12 A. 180 roughly.
13 Q. Has your weight changed since
14 September of 2013?
15 A. I probably put on a few pounds.
16 Q. Could you give me a fair
17 estimate of how many pounds?
18 A. Five to ten, I guess, I don't
19 know.
20 Q. Do you currently own a vehicle?
21 A. Yes.
22 Q. What type of vehicle?
23 A. A 2014 Honda Civic.
24 Q. The color?
25 A. Blue.
DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
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1 McGONIGAL
2 Q. Standard or automatic
3 transmission?
4 A. Automatic.
5 Q. Do you own any other types of
6 recreational vehicles, boats, jet skis,
7 things of that nature, a snowmobile or
8 whatever?
9 A. Yes.
10 Q. What else do you own?
11 A. I have a boat.
12 Q. What type of boat?
13 A. It's a 2001. It's a 1987
14 Wellcraft. It's twenty-one foot.
15 MR. DIAMANTIS: What is that?
16 A Wellcraft?
17 THE WITNESS: Wellcraft is the
18 model, the make.
19 Q. Is that like a fishing boat?
20 A. Fishing cruiser.
21 MS. FULLERTON: Off the record.
22 (Whereupon, the discussion was
23 held off the record.)
24 Q. When did you purchase that
25 boat?
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
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1 McGONIGAL
2 A. It was given to my uncle that
3 passed away and I acquired the boat, I
4 would say, sometime in 2004, 2005.
5 Q. When you say you acquired it,
6 was it given to you, did you purchase it or
7 something else?
8 A. It was given to me by my aunt,
9 yes.
10 Q. Do you own any other types of
11 motor vehicles or recreational vehicles?
12 A. I have a 2011 Toyota RKV 4,
13 which I recently purchased from my parents.
14 Q. How recently?
15 A. A couple of months.
16 Q. Sometime in 2016?
17 A. Yes.
18 Q. What color is that vehicle?
19 A. It's dark gray.
20 Q. Is it automatic or standard
21 transmission?
22 A. Automatic.
23 Q. Where were you born?
24 A. Where was I born?
25 Q. Yes.
DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com
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FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023
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Preview
FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 EXHIBIT “Q” EXHIBIT “Q” FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 1 04/17/2023 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 INDUSTRIES, 8 INC., 9 DEFENDANTS. 10 PLAZA CONSTRUCTION CORP., 11 THIRD-PARTY PLAINTIFF, 12 -against- 13 BARING INDUSTRIES, INC., 14 THIRD-PARTY DEFENDANT. 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 (Captions continues) 21 22 DATE: November 9, 2016 23 TIME: 10:30 A.M. 24 25 (DEPOSITION OF KEVIN McGONIGAL.) DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 1 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 2 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 -against- 7 B&G ELECTRICAL CONTRACTORS, ESS & VEE 8 ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., 9 THIRD THIRD-PARTY DEFENDANTS. 10 ------------------------------------------X 11 12 DATE: November 9, 2016 13 TIME: 10:30 A.M. 14 15 EXAMINATION BEFORE TRIAL of the 16 Plaintiff, KEVIN McGONIGAL, taken by the 17 Respective Parties, pursuant to an Order, 18 held at the offices of Sacks & Sacks, LLP, 19 150 Broadway, New York, New York 10038, 20 before May Jean Wu, a Court Reporter and 21 Notary Public of the State of New York. 22 23 24 25 DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 2 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 3 1 2 A P P E A R A N C E S: 3 SACKS & SACKS, LLP 4 Attorneys for the Plaintiff 150 Broadway 5 New York, New York 10038 BY: ANDREW R. DIAMOND, ESQ. 6 7 FABIANI COHEN & HALL, LLP 8 Attorneys for the Defendants/ Third-Party Plaintiff/ 9 Second Third-Party Plaintiff and Third Third-Party Plaintiffs 10 NYY STEAK MANHATTAN, LLC and PLAZA CONSTRUCTION CORP. 11 570 Lexington Avenue New York, New York 10022 12 BY: PATRICK AURILIA, ESQ. File Number: 731.37312 13 14 LAW OFFICES OF CHARLES J. SIEGEL 15 Attorneys for the Defendant/ Third-Party Defendant/ 16 Second Third-Party Plaintiff and Third Third-Party Defendant 17 BARING INDUSTRIES, INC. 125 Broad Street 7th Floor 18 New York, New York 10004 BY: NIKOLAOS E. DIAMANTIS, ESQ. 19 File Number: 1141413662 20 21 MILBER MAKRIS PLOUSADIS & SEIDEN, LLP Attorneys for the 22 Second Third-Party Defendants DAY & NITE REFRIGERATION CORP. and 23 KIMCO REFRIGERATION CORP. 1000 Woodbury Road Suite 402 24 Woodbury, New York 11797 BY: DAVID A. LORE, ESQ. 25 File Number: 532-1347 DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 3 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 4 1 2 A P P E A R A N C E S: (Continued) 3 VIGORITO, BARKER, PORTER & PATTERSON, LLP 4 Attorneys for the Third Third-Party Defendant 5 B&G ELECTRICAL CONTRACTORS 115 Stevens Avenue 6 Valhalla, New York 10595 BY: EILEEN R. FULLERTON, ESQ. 7 8 SMITH MAZURE DIRECTOR 9 WILKINS YOUNG & YAGERMAN, P.C. Attorneys for the 10 Third Third-Party Defendant ESS & VEE ACOUSTICAL CONTRACTORS, 11 INC. 111 John Street 12 New York, New York 10038 BY: ROBERT PALISENO, ESQ. 13 File Number: AWA112 14 * * * 15 16 17 18 19 20 21 22 23 24 25 DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 4 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 5 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 subdivision (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 answer 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, (iii)or 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 (718) 624-7200 info@diamondreporting.com 5 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 6 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 (718) 624-7200 info@diamondreporting.com 6 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 7 1 McGONIGAL 2 K E V I N M c G O N I G A L, called as 3 a witness, having been first duly sworn by 4 a Notary Public of the State of New York, 5 was 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. Where do you live? 12 A. 117 Chrisjan Drive, East 13 Stroudsburg, Pennsylvania 18301. 14 Q. Good morning, sir. 15 A. Good morning. 16 Q. My name is Patrick Aurilia and 17 my office represents NYY Steak Manhattan as 18 well as Plaza Construction in this lawsuit. 19 I'm going to ask you some 20 questions relative to the action you're 21 bringing and the accident you had on 22 September 6, 2013. I ask that all your 23 responses to my questions be verbal so that 24 the court reporter can take them down 25 instead of shaking your head or using your DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 7 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 8 1 McGONIGAL 2 hands. 3 A. Yes. 4 Q. Like your attorney just 5 instructed you, please let me finish the 6 question before you respond to me so that 7 we don't talk over one another so that it's 8 easier for the court reporter. If at any 9 time you don't understand the question that 10 I ask, let me know and I'll rephrase it so 11 that you do understand what I'm saying, 12 okay? 13 A. Yep. 14 Q. If at any time you would like 15 to take a break, stretch your legs or speak 16 to your attorney, you're free to do so as 17 long as there is no question pending, okay? 18 A. Okay. 19 Q. The address you gave, 117 20 Chrisjan Drive in East Stroudsburg, how 21 long have you lived there? 22 A. I have lived there since 2003. 23 Q. Is that a private home? 24 A. Yes. 25 Q. Who owns that home? DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 8 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 9 1 McGONIGAL 2 A. I do. 3 Q. Solely? 4 A. Yes. 5 Q. What type of home is it? Can 6 you describe it? Is it like a colonial 7 style, a ranch style or something else? 8 A. It's a single story ranch. 9 Q. Who lives there currently? 10 A. Just myself. 11 Q. Who lived there in September of 12 2013? 13 A. Just myself and I had my 14 ex-girlfriend, but, no, she wasn't there at 15 that time. 16 Q. Are you married, sir? 17 A. No. 18 Q. Have you ever been married? 19 A. What? 20 Q. Have you ever been married? 21 A. No. 22 Q. Any children? 23 A. No. 24 Q. Can I have your date of birth? 25 A. 1977. DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 9 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 10 1 McGONIGAL 2 Q. Your Social? 3 A. 4 Q. Have you ever used any 5 different Social Security number? 6 A. No. 7 Q. What's your current height? 8 A. Six foot. 9 Q. Even? 10 A. I believe so, yeah. 11 Q. Your current weight? 12 A. 180 roughly. 13 Q. Has your weight changed since 14 September of 2013? 15 A. I probably put on a few pounds. 16 Q. Could you give me a fair 17 estimate of how many pounds? 18 A. Five to ten, I guess, I don't 19 know. 20 Q. Do you currently own a vehicle? 21 A. Yes. 22 Q. What type of vehicle? 23 A. A 2014 Honda Civic. 24 Q. The color? 25 A. Blue. DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 10 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 11 1 McGONIGAL 2 Q. Standard or automatic 3 transmission? 4 A. Automatic. 5 Q. Do you own any other types of 6 recreational vehicles, boats, jet skis, 7 things of that nature, a snowmobile or 8 whatever? 9 A. Yes. 10 Q. What else do you own? 11 A. I have a boat. 12 Q. What type of boat? 13 A. It's a 2001. It's a 1987 14 Wellcraft. It's twenty-one foot. 15 MR. DIAMANTIS: What is that? 16 A Wellcraft? 17 THE WITNESS: Wellcraft is the 18 model, the make. 19 Q. Is that like a fishing boat? 20 A. Fishing cruiser. 21 MS. FULLERTON: Off the record. 22 (Whereupon, the discussion was 23 held off the record.) 24 Q. When did you purchase that 25 boat? DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 11 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 12 1 McGONIGAL 2 A. It was given to my uncle that 3 passed away and I acquired the boat, I 4 would say, sometime in 2004, 2005. 5 Q. When you say you acquired it, 6 was it given to you, did you purchase it or 7 something else? 8 A. It was given to me by my aunt, 9 yes. 10 Q. Do you own any other types of 11 motor vehicles or recreational vehicles? 12 A. I have a 2011 Toyota RKV 4, 13 which I recently purchased from my parents. 14 Q. How recently? 15 A. A couple of months. 16 Q. Sometime in 2016? 17 A. Yes. 18 Q. What color is that vehicle? 19 A. It's dark gray. 20 Q. Is it automatic or standard 21 transmission? 22 A. Automatic. 23 Q. Where were you born? 24 A. Where was I born? 25 Q. Yes. DIAMOND REPORTING (718) 624-7200 info@diamondreporting.com 12 FILED: NEW YORK COUNTY CLERK 04/17/2023 11:48 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 564 RECEIVED NYSCEF: 04/17/2023 13